Google
This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project
to make the world’s books discoverable online.
It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books
are our gateways to the past, representing a wealth of history, culture and knowledge that’s often difficult to discover.
Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book’s long journey from the
publisher to a library and finally to you.
Usage guidelines
Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:
+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.
+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.
+ Maintain attribution The Google “watermark” you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.
+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.
About Google Book Search
Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web
a[nttp: //books . google. com/]
IOYe RN | QJ
THE
ELEMENTS OF ROMAN LAW
BY GALUS
POSTE
Zonbdon
HENRY FROWDE
Oxrorp UwivERsITY PRESS WAREHOUSE
AMEN Corner, E.C.
Qo CL 1 9 59H.
* 4»
| © GAII c
2S
INSTITUTIONUM IURIS CIVILIS
COMMENTARII QUATTUOR
OR
ELEMENTS OF ROMAN LAW
BY GAIUS
t
WITH A TRANSLATION AND COMMENTARY
BY
EDWARD POSTE, M.A.
BABRISTER AT"LAW
AND FELLOW OF ORIEL COLLEGE, OXFORD
THIRD EDITION, REVISED AND ENLARGED
e
Orford
AT THE CLARENDON PRESS
M.DCCC.XC
[All rights reserved |
Orford
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, PRINTER TO THR UNIVERSITY
PREFACE.
om}
In the year 1816, Niebuhr noticed in the library of the Cathedral
Chapter at Verona & manuscript in which certain compositions of
Samt Jerome had been written over some prior writings, which in
certam places had themselves been superposed on some still earlier
inscription. On communication with Savigny, Niebuhr came to
the conclusion that the lowest or earliest inscription was an ele-
mentary treatise on Roman Law by Gaius, a treatise hitherto only
known, or principally known, to Roman lawyers by a barbarous
epitome of its contents inserted in the code of Alaric 2, king of
the Visigoths (§ 1, 22, Comm.). The palimpsest or rewritten
manuscript originally contained 129 folios, three of which are now
lost. One folio belonging to the Fourth Book ($ 186-5 144)
having been detached by some accident from its fellows, had been
published by Maffei in his Historia Teologica, a.p. 1740, and re-
published by Haubold in the very year in which Niebuhr discovered
the rest of the codex.
Each page of the MS. generally contains twenty-four lines, each
line thirty-nine letters; but sometimes as many as forty-five. On
sixty pages, or about a fourth of the whole, the codex is doubly
palimpeest, i.e. there are three inscriptions on the parchment.
About a tenth of the whole is lost or completely illegible, but part
of this may be restored from Justinian's Institutes, or from other
sourees ; accordingly, of the whole Institutions about one thirteenth
is wanting, one half of which belongs to the Fourth Book.
From the style of the handwriting the MS. is judged to be older
than Justinian or the sixth century after Christ; but probably did
not precede that monarch by a long interval.
vi | PREFACE.
In à year after Niebuhr's discovery the whole text of Gaius had
been eopied out by Goeschen and Hollweg, who had been sent to
Verona for that purpose by the Prussian Royal Academy of
Sciences, and in 1820 the first edition was published. In 1874
Studemund published an apograph or facsimile volume, the fruits
of a new examination of the Veronese MS.; and in 1877 Stude-
mund,'with the assistance of Krueger, published a revised text.of
Gaius founded on the apograph; and I have to acknowledge the
courtesy of those distinguished scholars in permitting their text to
be printed by the Clarendon Press for the purposes of this edition.
Little is known about Gaius, not even his family name (cog-
nomen), or gentile name (nomen), for Gaius is merely an individual
name (praenomen) The word ‘Gaius’ is a trisyllable in the
classical period, for instance, in the versification of Catullus,
Martial, and Statius; but at a Jater period, e. g. in the versifieation
of Ausonius, it is contracted into a dissyllable.
Respecting his date, we know that he flourished under the
emperor Hadrian (a.p. 117—188), Antoninus Pius (A.p. 188-161),
Marcus Aurelius Antoninus (A.D. 161-180), and Commodus (a.p.
180-192). Gaius himself mentions that he was a contemporary of
Hadrian, Dig. 34, 5, 7, pr. He apparently wrote the First Book
of his institutions under Antoninus Pius, whom he mentions, § 58,
$ 74, $ 102, without the epithet Divus (of divine or venerable
memory), & term only applied to emperors after their decease, but
in the Second Book, § 195, with this epithet. The Antoninus
mentioned, § 126, is either Pius or Marcus Aurelius Philosophus.
Respecting the rules of Cretio, 2 § 177, Gaius appears not to be
cognizant of a constitution of Marcus Aurelius mentioned by
Ulpian, 22, 84. That he survived to the time of Commodus ap-
pears from his having written a treatise on the Sc. Orphitianum,
an enactment passed under that emperor.
As the opinions of Gaius are not quoted by the subsequent
jurists whose fragments are preserved in the Digest, it has been
inferred that Gaius was a public teacher of jurisprudence (jus
publice docens), who never in his lifetime obtained the highest
distinction of the legal profession, the title of juris auctor (jus
publice respondens). Valentinian, however, after his death raised
PREFACE. vil
Gaius to the position of juris auctor, that is, gave to his writings
pre-eminent auctoritas, or exclusive legislative authonty, equal to
that of four other jurists, Papinian, Ulpian, Paulus, and Modestinus.
Besides his Institutions, Gaius was the author of many other
treatises, of which fragments are preserved in the Digest, and some
of which are alluded to by Gaius m the Institutions. For instance,
he wrote a treatise on Edictum Urbicum, 1 § 188, which, as
opposed to Edictum Provinciale, probably embraced the edicts of
the Praetor urbanus, the Praetor peregrinus, and the Aedilis
curulis; a commentary on the Twelve Tables, another on the lex
Papia Poppaea, another on the works of Quintus Mucius, besides
a treatise on Res quotidianae, and the above-named treatise on
Se. Orphitianum and another on Sc. Tertullianum.
The name of the recently discovered work does not appear in
the MS. ; but from the proem to Justinian's Institutes appears to
have been INSTITUTIONES, or to distinguish it from the systems of
Rhetoric which also bore this name, INSTITUTIONES IURIS CIVILIS.
From the way in which it is mentioned by Justinian, we may infer
that for 850 years the ¢lite of the youth of Rome were initiated
in the mysteries of jurisprudence by the manual of Gaius, much
as English law students have for many years commenced their
labours under the auspices of Blackstone. It is probably in
allusion to the familiarity of the Roman youth with the writings
of Gaius that Justinian repeatedly calls him (e.g. Inst. proem, 6;
Inst. 4, 18, 5; and in the Constitution prefixed to the Digest, and
addressed ad Antecessores, § 1), ‘our friend Gaius’ (Gaius noster).
The shortness of the time that sufficed Tribonian and his colleagues
for the composition of Justinian’s Institutes (apparently a few
months towards the close of the three years devoted to the com-
pilation of the Digest, Inst. proem) is less surprising when we
see how closely Tribonian has followed the arrangement of Gaius,
and how largely, when no change of legislation prohibited, he has
appropriated his very words.
Certain internal evidences, as already noticed, fix the date at
which portions of the Institutions were composed. The emperor
Hadrian is spoken of as Departed or Deceased (Divus) except in
1 § 47 and 2 § 57. Antoninus Pius is sometimes (1 § 58, 1 § 102)
viii PREFACE.
named without this epithet, but in 2 $ 195 has the style of Divus.
Marcus Aurelius was probably named, 2 § 126, and the Institutions
were probably published before his death, for 2 § 177, as above
mentioned, contains no notice of a constitution of his, recorded by
Ulpian, that bears on the matter in question. Paragraphs 8 § 24,
§ 25 would hardly have been penned after the Sc. Orphitianum,
A. D. 178, or the Se. Tertullianum, a.p. 158.
In the text of Gaius, the words or portions of words which are
purely conjectural are denoted by italics. The orthography of the
Veronese MS. is extremely inconstant. Some of these inconstancies
it will be seen are retained: e.g. the spelling oscillates between the
forms praegnas and praegnans, nanctus and nactus, erciscere and
herciscere, prendere and prehendere, diminuere and deminuere,
parentum and parentium, vulgo and volgo, apud and aput, sed and
set, proxumus and proximus, affectus and adfectus, inponere and
imponere, &c. Some irregularities likely to embarrass the reader,
e.g. the substitution of v for b in debitor and probare, the substi-
tution of b for v in servus and vitium, have been tacitly corrected.
The numeration of the paragraphs was introduced by Goeschen in
his first edition of Gaius, and for convenience of reference has been
retained by all subsequent editors. The rubrics or titles marking
the larger divisions of the subject, with the exception of a few at
the beginning, are not found in the Veronese MS. Those that are
found are supposed not to be the work of Gaius, but of a tran-
scriber. The remainder are partly taken from the corresponding
sections of Justinian’s Institutes, partly invented or adopted from
other editors.
An elementary treatise can scarcely make any profession of
originality. I have availed myself of lights wherever I could
obtain them. And, not to crowd the following pages with refer-
ences to the writers to whom I am indebted, I must here once for
all acknowledge my obligation, not to mention many authors from
whom I have borrowed isolated views or quotations, to Austin, to
Ortolan, to Puchta, to Ihering, to Bethmann-Hollweg, and above
all to Vangerow and Von Savigny.
The present edition differs from its predecessors not only by
various corrections and additions, and by adjustment of the trans-
PREFACE. ix
lation and commentary to the new readings obtained from the re-
examination of the Veronese MS. by Studemund and the critical
labours of Krueger; but also by omission from the commentary of
much that seemed unnecessary to the purpose of giving the student
a commanding though general view of the principal branches of
the Roman Civil Law.
In preparing this third edition for the press I have received the
valuable assistance of my friend Mr. E. A. Whittuck.
E. P.
B.C.
753.
578—535.
910.
494.
151—450.
445.
366.
326.
312.
287.
287.
280.
247.
244 t.
234 f.
CHRONOLOGICAL TABLE.
Foundation of Rome.
Servius Tullius. Division into thirty Tribes. Institution
of Comitia Tributa, Census, Comitia Centuriata.
Office of consuls instituted.
First secession of Plebs. Institution of Tribuni Plebis.
Law of the Twelve Tables.
Lex Canuleia.
Office of Praetor instituted.
Lex Poetelia.
Cnaeus Flavius publishes forms of actions and a calendar of
dies fasti and nefasti.
Last secession of the Plebs. Lex Hortensia.
Lex Aquilia.
Tiberius Coruncanius (first plebeian pontifex maximus),
consul.
First appointment of a Praetor Peregrinus.
Lex Silia.
Lex Calpurnia.
xii | CHRONOLOGICAL TABLE.
B. C.
204. Lex Cincia.
200. Lex Plaetoria passed about this time.
183. Lex Furia testamentaria.
173. Lex Cicereia.
170. Lex Aebutia.
169. Lex Voconia.
105. P. Rutilius Rufus, consul.
95. Q. Mucius Scaevola (pontifex), consul.
81. Lex Cornelia de injuriis.
66. C. Aquilius Gallus, praetor, colleague of Cicero.
51. Servius Sulpicius, consul.
40. Lex Falcidia.
27. Octavianus receives the titles of Augustus and Imperator.
M. Antistius Labeo.
C. Ateius Capito.
18. Lex Julia de adulteriis et de maritandis ordinibus.
A. D.
4. Lex Aelia Sentia.
Lex Fufia Caninia.
6. Lex Julia de vicesima hereditatium.
9. Lex Papia Poppaea. -
14-37. Tiberius.
Masurius Sabinus.
Proculus.
19. Lex Junia Norbana.
30. C. Cassius Longinus, consul.
A.D.
37—41.
41— 54.
42.
46.
47.
204—868.
62.
64.
69—79.
79—81.
8 1-——96.
96—98.
CHRONOLOGICAL TABLE.
Caligula.
Claudius,
S. C. Claudianum.
S. C. Largianum.
S. C. Velleianum.
Lex Claudia.
Nero.
S. C. Trebellianum.
S. C. Neronianum.
Vespasian.
S. C. Macedonianum.
R. C. Pegasianum.
Titus.
Domitian.
Nerva.
98—117. Trajan.
117—138. Hadrian.
129,
130.
132.
S. C. Juventianum. |
S. C. Tertullianum.
Edictum perpetuum of Salvius Julianus.
xiii
138—161. Antoninus Pius. First and part of the second book of the
178.
Institutes of Gaius probably written at this time.
161—180. Marcus Aurelius Antoninus Philosophus.
S. C, Orphitianum.
180—192. Commodus, sole Emperor.
193—212, Septimins Severus.
204.
Papinian, praefectus praetorio.
xiv
A.D.
212—217.
222—236.
222.
294.
306—337.
330.
426.
439.
506.
527—565.
529.
533.
534.
CHRONOLOGICAL TABLE.
Caracalla.
Alexander Severus.
Ulpian, praefectus praetorio.
Judicia ordinaria abolished by Diocletian.
Constantine the Great.
Constantinople the seat of government.
Law of Citations, a constitution of Theodosius II and Valen-
tinian III.
Codex Theodosianus.
Lex Romana Visigothorum, or Breviarium Alarici, containing
Epitome of Gaius.
Justinian.
Publication of Code.
Publication of Digest and Institutes.
Revised Edition of Code.
CONTENTS.
BOOK I.
STATUS OR UNEQUAL RIGHTS [DE PERSONIS].
9—12
565—107
108—115
116—123
124—141
142—196
197—200
PAGE
SOURCES OR ORIGINS of law, or various ORGANS of
legislation, CIVIL law, and NATURAL law ... 1—35
DIVISIONS OF LAW 85— 839
The subjects of the Civil Code are
(1) UNEQUAL RIGHTS (PERSONAE, Book I) ;
(2) EQUAL RIGHTS (RES, Books II and IIT);
(3) PROCEDURE (ACTIONES, Book IV);
STATUS or INEQUALITY of rights divides the members
of society into nine classes: the Freeborn, the Freedman,
the Slave; the Citizen, the Latin, the Alien; the Father of
the household, the Son of the household, the Bondsman ... 89—42
FREEDMEN 42—57
SLAVES ... 58—60
PATERNAL POWER, the modes in which it originates 61—87
MARITAL POWER, the modes in which it originates 87—95
BONDAGE, the mode in which it originates ... eee 95—99
Modes in which PATERNAL POWER, MARITAL
POWER, and BONDAGE are terminated ose .. 99—108
INEQUALITIES among those who are INDEPENDENT
(Fathers of their household).
GUARDIANSHIP, classes and modes in which it originates
and terminates ... oes ees e en 108—136
CURATORS 136—145
xvi
SECTION
1—79
62—64
80—85
86—96
97—190
191—245
246—259
260—289
CONTENTS.
BOOK II.
EQUAL RIGHTS [DE REBUS].
EQUAL RIGHTS are
(1) ELEMENTARY or UNITARY (RES SINGULA E).
(2) COLLECTIVE (RERUM UNIVERSITATES).
Elementary rights are
(1) REAL (JUS IN REM).
(2) PERSONAL (JUS IN PERSONAM).
Real rights are (not to mention PRIMORDIAL rights)
(1) UNLIMITED (DOMINIUM or OWNERSHIP).
(2) LIMITED (SERVITUS or EASEMENT).
ELEMENTARY or UNITARY RIGHTS (RES SIN-
GULAE), and in the first place the REAL RIGHTS of
OWNERSHIP and SERVITUDE (one branch of RES
SINGULAE).
TITLES or facts originative of REAL rights, whether
OWNERSHIP OR SERVITUDE .. Te -
Ownership without power of alienation, and power of alienation
without ownership ... er es e
Alienation by WARDS ...
INSTRUMENTS of Acquisition of Real rights...
COLLECTIVE RIGHTS (RERUM UNIVERSITATES].
The TITLES by which a person is invested with Collective
rights, in other words, the TITLES of UNIVERSAL
SUCCESSION, are five, Testamentary disposition, Intestacy,
Insolvency, Adrogation, and Manus or Marital power.
WILLIS ..
LEGACIES, Legacies are Titles to RES SINGULAE, but
are introduced in this place as being acoessory to WILLS
TRUSTS.
COLLECTIVE rights in TRUST , -
ELEMENTARY rights in TRUST, though erampls of
RES SINGULAE, are introduced in this piace as ^ being
accessory io WILLS ..._... T e
PAGE
140—195
187
195—196
197—202
202—252
258—271
271—388
289—298
SECTION
1—38
39—76
77—87
88—162
163—107
168—181
182—225
88—102
169—109
CONTENTS.
BOOK III.
INTESTACY or title by DESCENT.
ORDER of Intestate Succession
Successions to FREEDMEN, testate and intestate
Succeesions by INSOLVENCY, ADROGATION, MARI-
TAL POWER, transfer of Inheritance eos
PERSONAL RIGHTS, or OBLIGATIONS [the other branch
of RES SINGULAE], and their TITLES.
Obligations founded on CONTRACT
INSTRUMENTS of acquiring Obligation
EXTINCTION of Obligation
Obligations founded on DELICT
BOOK IV.
PROCEDURE [DE ACTIONIBUS].
CLASSIFICATION of Actions e e
STATUTE-PROCESS or ANCIENT method of Procedure ..
FORMULARY Procedure, FICTION
Component parts of the FORMULA. ... ,
SUBSIDIARY actions on Contract and Delict es
REPRESENTATION of the principal parties to an action ...
SECURITIES to be given by the parties to an action
STATUTORY actions (1) in a wider sense, as actions required
by the lex Julia to be terminated in eighteen months from
their institution; and (2) in à narrower sense, or such of the
former olass as in respect of NOVATION or CONSUMP-
TION of the right of action are assimilated by the lex
Aebutia to the statute-process (legis actio) of the older
system.
NON-STATUTORY actions, or actions founded on the
executive authority of the Praetor, are required to ter-
minate within twelve months from their institution, and
have no power at civil law of consuming or novating a right
of action, but bar a subsequent action when pleaded by the
exceptio rei judicatae.
Actions with a pendency or duration of eighteen months, but
without a power of NOVATION or CONSUMPTION at
civil law, are STATUTORY in one sense and NON-
STATUTORY in another -
b
xvii
PAGE
294 —306
806—323
823—398
838—411
411—412
418—425
425—454
455—407
467 —484
484—498
493—528
523 —531
531—588
533—540
540—551
xvlll
BECTION
110—118
114
115—197
188—170
171—182
CONTENTS.
PERPETUAL actions, or actions which can be instituted at
any date from their nativity (in later times within twenty
or thirty years from their nativity), and TEMPORARY
actions, or actions that must be instituted within a certain
date (usually a year) from their nativity. Actions TRANS-
MISSIBLE or NOT-TRANSMISSIBLE to the successors
of the principal parties er en en e. e
Title of defendant subsequent to Litis contestatio
NEGATION and EXCEPTION, or NULLITY, NULLIFI-
CATION, COLLISION, of rights m
INTERDICT and POSSESSION and DETENTION et
VEXATIOUS litigation
ADDENDUM
APPENDIX
INDEX
PAGE
551—560
5660 —562
562—587
587—025
625—032
638
645
649
EXPLANATION OF ABBREVIATIONS.
Inst. Institutes of Justinian.
Dig. or D. Digest or Pandects of Justinian.
Cod. or C. Codex of Justinian.
The meaning of the numbers that follow these abbreviations will be
obvious to any one who opens a volume of the Corpus Juris.
Pr. stands for principio, meaning, in the first paragraph of a title of
the Institutes, or of a fragment of a title of the Digest. |
The Commentaries of Gaius are referred to by numbers indicating the
book and the paragraph: e.g. 2 § 5, indicates the 5th paragraph of
Book 2.
When Ulpian or Paulus is quoted, the works referred to are the Regulae
of Ulpian and the Sententiae Receptae of Paulus.
When Savigny or Vangerow is simply cited, the references are to
Savigny, System des heutigen Rómischen Rechts; Vangerow, Lehr-
buch der Pandekten.
ELEMENTS OF ROMAN LAW.
BOOK I.
DE PERSONIS.
Tue following treatise is a portion of a particular jurisprudence ;
it is an exposition of the Civil Law of Rome, that is to say, of her
Private law (jus privatum) as opposed to her Public law (jus pub-
lieum) in both acceptations, in other words, as opposed both to her
Criminal law and to her Constitutional law.
À scientific jurisprudence and & well-arranged code would imitate
the method of the natural sciences in proceeding from the universal
to the particular, from the general to the special: that is, before
expounding the special branches of law, would enunciate the ideas
and principles common to all the branches. The advantage gained
by this arrangement would be simplification and the avoidance of
repetition. Thus Biology expounds the general doctrines of ana-
tomy and physiology before it treats in detail of the separate classes
of vegetables or animals; and the best German jurists follow a
similar method in their Pandects or systematic expositions of
Roman law. Gaius, however, in his Institutions, thinking, per-
haps, that the concrete should be presented to beginners before the
abstract, omits the general or transcendental basis of jurisprudence
and plunges at once into the special divisions of the code. A com-
mentator on Gaius, accordingly, if he cannot abstain entirely from
preliminary generalisations, must be as brief as he can, and confine
Ve. B
2 PRELIMINARY DEFINITIONS.
himself to unfolding the import of some of the pivot terms and
most pervading conceptions; and we shall find most of the defi-
nitions we require already elaborated for us in the writings of
Austin, to whose valuable but unfortunately unfinished Lectures
on Jurisprudence I am indebted for many of the definitions and
divisions that will be employed in this introduction.
A few definitions will suffice. The words which denote the
instruments and materials of legislation and the subject-matter
of Jurisprudence are Law, Sanction, Title, Right, Obligation.
The definitions of these five terms may, indeed, be regarded as a
single definition, for the things denoted by these five words are
merely the same thing looked at from different sides: at least
they are correlative ideas, indissolubly connected parts of the same
indivisible whole. The definitions of these terms which we proceed
to give are their definitions, it is to be observed, as used in juris-
prudence, that is, in the exposition not of natural or moral laws
but of positive or politieal laws, and are accordingly unconnected
with the hypotheses of any particulár school of Ethical speculation.
A Law is a command ; that is to say, it is the signification by a
lawgiver to a person obnoxious to evil of the lawgiver's wish that
such person should do or forbear to do some act, with the inti-
mation of an evil that will be inflieted in case the wish be
disregarded.
Points to be noted here are the author and the subject of law.
Every law is set by a sovereign person or a sovereign body of
persons to a member or members of the independent political
society wherein that person or body is sovereign or supreme: it
is set by a monarch or sovereign number to a person or persons in
a state of subjection to its author. A Sovereign is a determinate
human superior, who receives habitual obedience or submission from
the bulk of a given society, and is not in the habit of yielding
obedience to a like superior.
A Sanction is the evil annexed to the command of the lawgiver.
Obligation or duty is the burden imposed by the command of
the lawgiver on a person obnoxious to the evil annexed to the
command.
Right is the capacity of exacting by the power of the sovereign
certain acts or forbearances; or, it is the capacity of the person
benefited by a doing or forbearance commanded by the lawgiver
to enforce that performance or forbearance from the person to
PRELIMINARY DEFINITIONS. 3
whom it is onerous, that is, to whom it is commanded, by an appeal
to the sovereign power to whom such person is subject.
Dealing at present with the Civil code, we shall confine ourselves,
in treating of Rights, to rights of subject against subject, that is,
to righte which imply a common superior. Whether a sovereign
can have rights against his own subject, whether, that is, the con-
ception of rights permits the same person to be party and sove-
reign, is a question that may be left to the theory of the Political
code. The question whether a sovereign in his civil courts of
judicature, shall accord rights to a foreign potentate, that is, to one
who owes him no allegiance, may be left to the theory of the
salutary but sanctionless code called the Comity of nations.
Title is the fact, event, or circumstance defining or designating
the person on whom the lawgiver confers a right or on whom
he imposes an obligation. The word Title is employed in a limited
application by English lawyers, to denote the mode of acquiring a
Real right; but we use it without any limitation to any branch
of law, to denote universally the fact originating any right, real
or personal, and not. only to denote the fact originating any right,
but also the fact originating any obligation, civil or criminal; nay,
further, not only to denote the mode in which any right, or obliga-
tion is originated, or begins, but also to denote the mode in which
any right or obligation is terminated or comes to an end. To use
the nomenclature of Bentham, a Title is a fact Collocative! of Rights
and Obligations. The generic term Collocative splits into Investi-
tive and Divestitive. Title, then, is a fact Investitive or Divestitive
of Rights and Obligations. Investitive again splits into Collative
and Impositive, and Divestitive into Privative, or Ablative, and
Exonerative. Title, then, definitively, is any fact Collative or Priva-
tive of a Right and Impositive or Exonerative of an Obligation.
Every Right implies a Law by which it is created, a Title to
which it is annexed, a sovereign by whom it is enforced, a Sanction
by means of which it is enforced, a person in whom it resides, and
a person on whom a correlative obligation is incumbent. The same,
mutatis mutandis, may be said of every relative Obligation. We
say of every relative obligation, for not all obligations are relative.
Obligations are either relative or absolute; relative are those which
imply a private person invested with a corresponding right, absolute
! As the term Disposition is presently used in a narrower sense, the term Colloca-
tive bas been substituted for Bentham’s term Dispositive.
B 2
4 PRELIMINARY DEFINITIONS.
those which do not involve a private person invested with a cor-
relative right. For instance, the duties violated by smuggling,
by polygamy, by breach of prison, by cruelty to brute animals, are
not obligations to a private person but to the sovereign, and the
rights of the sovereign, if he has any, have no limits but the limits
of his might, and bear no resemblance to the righte contemplated
by the Civil code, which are acts or forbearances, enforcible by
appeal to a common human superior; for the sovereign, ex vi ter-
mini, has no human superior. All rights, then, imply correlative
obligations, but not all obligations imply correlative rights.
Every legislation or system of laws is composed of a vast number
of particular laws, having the same or analogous features, just as
every tissue is composed of an infinity of threads, and every veget-
able or animal organism of an infinity of cells: and having before
our eyes the cardinal points of any individual law, by considering
the division or differentiation of these cardinal points we may
anticipate the leading divisions of the general mass of legislation.
Having given the definitions of these cardinal points, we will
now notice some of their fundamental divisions.
The primary division of Rights, the one most necessary for
forming clear conceptions on the subject, a division which, as far
as my acquaintance with juristic literature extends, Austin was the
first to make clear and luminous, is the division into Sanctioned
rights and Sanctioning rights. This division of rights depends on
a corresponding division of the Titles to which they are annexed.
Sanctioned, or primary, or final rights, are such nights as exist
antecedently to any Wrong, rights whose Title or origin from
which they spring, and which defines the person on whom they are
conferred, is some circumstance other than a Wrong. Sanctioning,
secondary, or instrumental rights, are rights engendered by a Wrong
committed by some other person, rights conferred upon a person
whose title to them is the fact that he has suffered a Wrong.
Wrong is the violation of right or duty, and may be defined as
disobedience, intentional or negligent, to the command of the
sovereign, entitling the wrongdoer to the Sanction, that is, to the
evil threatened by the lawgiver. Examples of Sanctioned righte
are the right of a proprietor to enjoy the fruits of ownership, the
right of a contractor to the performance of the promise made by
the person with whom he contracted, the right of every respectable
member of society to have his honour unstained, his character
PRELIMINARY DEFINITIONS. 5
unimpeached. The corresponding Sanctioning rights, or nghte
of the injured party to redress, are the right of the dispossessed
proprietor to be reinstated in possession, the right of the deceived
contractor to have damages for non-performance or to have specific
performance enforced by the court, the nght of the slandered
person to recover damages for slander.
The divergence of Rights into two classes, rights antecedent to
wrong, and nghts consequent on wrong, which we have referred to
a divergence of Titles, flows immediately from the essence of Law,
and may be deduced from ite definition.
The essence of every Law is the injunction or prohibition of some
given act, and the menace of an evil in the case of non-compliance.
Every law, that is to say, is at once Imperative and Punitory; it is
only Imperative by being Punitory. So far as law is Imperative,
it confers primary or sanctioned nghts, and imposes primary or
sanctioned duties; so far as it is Punitory, it confers secondary or
sanctioning rights, and imposes secondary or sanctioning duties.
A primary obligation may be defined as the burden imposed by the
law in ite first or imperative clause; a secondary obligation as the
burden imposed by the law in its alternative or punitory clause.
Sanctioning righte only exist for the sake of Sanctioned rights.
Accordingly, the latter may be called principal or final, the former
instrumental or ancillary. So far as the existence of Sanctioned
rights is dependent on the existence of Sanctioning rights, we
might invert the epithets primary and secondary, which we have
applied to them. I have no Sanctioned rights independently of the
injunction or prohibition which declares that some act or omission
is a violation of my right, and vindicates it by a Sanction civil or
enminal. That is, my Sanctioned right or duty owes its existence
to the injunction or prohibition of certain acte and to the remedy or
punishment to be applied in case of disobedience. Accordingly,
though looking at them as means and ends, we have called Sanc-
tioning rights Secondary and Sanctioned rights Primary; yet if we
looked at the order of existence, we might call Sanctioning nghts
Primary and Sanctioned righte Secondary.
Again, Sanctioning rights and duties are directly enforced by
the courte, Sanctioned righte and duties only indirectly. Sanc-
tioning rights and duties are not only immediately enforced, but
also universally and invariably, except when there is a miscarriage
of justice. Sanctioned righte and duties cannot be secured from
6 PRELIMINARY DEFINITIONS.
violation, even when the administration of justice is perfect: the
sovereign can only induce, persuade, incline, to the observance of
primary rights and duties, by holding out the inexorable alternative
of secondary rights and duties; he cannot compel. As only
secondary rights are directly enforced by the judicature, it might
be alleged that these are the only genuine rights; that primary
rights are merely imaginary, a fiction of philosophic jurisprudence :
and it must be admitted that some secondary rights are the more
prominent and constant object of the jurist than the corresponding
primary rights. Thus the portion of primary rights that here-
after, as opposed to Acquired rights, we shall call Primordial
rights (right to life, health, liberty, reputation, etc.) are never so
much as mentioned by Gaius, nor, so far as I am aware, by any
Roman jurist, but are only deducible from the corresponding Sanc-
tioning rights, the rights that arise from violence, assault and
battery, defamation, and the like. This obscuration of the Primary
right in comparison with the corresponding Secondary right is,
however, not invariable. The Primary rights of Status, Property,
Obligation, are commonly recognized both in popular and juristie
language as clearly as the corresponding Secondary rights, and we
are quite justified in extending the division of Sanctioned and
Sanctioning rights from these types where it is more strongly
marked through the universal sphere of rights, that is, to those
regions where the Primary rights have engaged a less amount of
attention.
A second fundamental division of rights, common to all legis-
lations, and ever present to the mind of Roman jurmte, is the
division into Real and Personal, or jus in rem and jus in personam.
This division of rights depends on a division of the corresponding
obligations. Every right residing in one person implies the
existence of another person or persons on whom a corresponding
duty is incumbent. The corresponding duty is sometimes incum-
"bent on & determinate person or persons, sometimes on persons
indeterminate, in other words, on the world at large. In the
former case it is usually positive, that is to say, a duty of actual
performance; in the latter case it is usually negative, that is to
say, à duty of abstention or forbearance. Jus in personam is a
right to acts on the part of a certain person, Jus in rem is a right
to forbearance on the part of all persons. Examples of Real
right are Status, Franchise, Ownership: examples of Personal
PRELIMINARY DEFINITIONS. 7
right are Obligations (in a narrower acceptation than we have
hitherto assumed) arising from contract or delict. Jus in rem may
be defined as a right correlating with obligations at once uni-
versal and negative: Jus in personam a right correlating with
obligations at once particular and positive. Jus in personam
implies the relation of debtor and creditor; Jus in rem is the right
of use and of prohibition; a right of dealing with a thing without
interference, and of excluding from all similar dealings the rest of
the world.
It is to be observed that the expressions Jus in rem and Jus
in personam are not classical. The classical expressions on which
they are modelled are actio in rem, actio in personam; action
to inforce a Real nght, action to inforce a Personal rnght. Juris-
pradence, however, requires terms to express this leading classi-
fication of Rights, and, as such terms are not supplied by the
Roman jurists, the above mentioned, as, though barbarous, they
seem on the whole to be most eligible, have been adopted, and will
be employed in the course of this commentary.
A third important division of Rights is expressed in the terms
Jara rerum and Jura personarum, rights given by the law of
Things, and rights given by the law of Persons. But we may
adjourn the consideration of this division until we examine the
rights of Status, as we shall immediately proceed to do, Status
forming the subject of the first book of the Institutions of Gaius.
The evil which constitutes a Sanction may consist in the loss
of any of the rights protected by the sovereign. It may be the
privation of political rights, the privation or diminution of pro-
perty, or the privation of primordial rights—inearceration, com-
pulsory labour, banishment, death.
The motives which sway the legislator in determining the nature
and amount of the sanction are various. Sometimes the motive
is simply the reparation of a harm inflicted. Sometimes the appor-
tionment of the remedy is intended as an inducement to the
aggrieved party to recur to the public judicature instead of redress-
ing his own grievance, and, to use a common expression, taking
the law into his own hands—an urgently pressing motive in the
infant beginnings of society. Sometimes the end of the lawgiver
is the prevention of the prohibited act by terrorism, by the menace
of the sanction and the execution of the menace. Sometimes the
. sanction is retributive or vindictive, the expression of the conscience
8 PRELIMINARY DEFINITIONS.
or moral sentiments of the society. In humane legislations a col-
lateral end of the sanction is often the reformation of the offender :
this motive is confined to sanctions of the criminal code.
To a division of Sanctions corresponds an important division
of jurisprudence. Some Sanctions may be enforced or remitted
at the discretion of a private party, others are enforced at the
discretion of the sovereign or state, and by the sovereign or state
alone can the liability of the wrongdoer be remitted. This founds
the division of the code or statute-book into the Civil code and the
Criminal code.
But even the Civil code presents, more strongly marked in Roman
law than in modern systems, a similar division of Sanctions. The
principal end or object of some Sanctions, as above stated, is the
redress of injury in the past, compensation or indemnity to the
injured person for his violated primary right; the end of others
is the prevention of injury in the future, terrorism, or the deterrence
of future wrongdoers by exemplary punishment of a past offender.
On this division of civil sanctions is based the division of civil
suits into Rei persecutio and Poenae persecutio, a suit to recover
property, and a suit to recover a penalty. A judgment may be
bilaterally penal, that is, may both impoverish the defendant and
enrich the plaintiff; or it may be unilaterally penal, that is, may
impoverish the defendant without enriching the plaintiff, e.g. in
a suit for indemnification, when the defendant has not gained in
proportion to the loss he has inflicted on the plaintiff. A suit
which is Rei persecutio may be unilaterally penal. Bilaterally
penal suits, though common in Roman law, are unfrequent in
.-modern legislations.
The sanction of a right or obligation, whether primary or
secondary, is a motive addressed to the will of the person who
owes the obligation, and is the prevision or anticipation of an
intending wrongdoer, that his unlawful gain will be extorted from
him, and commonly, an additional evil, loss, or pain will be in-
flicted on him by the irresistible power of the sovereign. The
sanction of the primary obligation is the secondary obligation, and
it is imaginable that the sanction of the secondary obligation
should be a tertiary obligation, and so on; but this series of sanc-
tioned and sanctioning obligations cannot proceed without a limit :
if it did, every sanction might be defied and every obligation
broken, and there would be no ultimate basis of obligation. But,
PRELIMINARY DEFINITIONS. 9
in fact, the series comes to a speedy end. When once the secondary
obligation is ascertained by a Judgment or Condemnation, unless
this judgment is satisfied by a voluntary submission of the party
condemned, the ultimate sanction soon quits the form of obligation,
and presents itself in the shape of Execution, that is, of physical
compulsion, to which the assent of the party obliged is immaterial.
Indeed, in the criminal code we can scarcely speak of primary and
secondary obligation, as the sanction usually in the first instance
assumes the form of physical compulsion.
One species of Titles and the most important deserves a more
particular consideration—the Titles which consist of human
action.
Human acts are either lawful or unlawful. All unlawful acta of
course are titles, that is, originate obligations, whether as contra-
vening the Civil code they are Torts, or as contravening the
Criminal code they are Crimes.
Of lawful acts only those are titles, or originate obligations,
which are designed to produce this effect, and these actions are
called by the distinctive name of Dispositions. Dispositions (the
Rechtageschifte of the Germans), then, are permitted actions in-
tended to generate or extinguish obligations. Dispositions such
as Testation or Bequest, to make which a single person is com-
petent, may be called unilateral: Dispositions such as Contract and
Alienation, which require the coneurrence of two persons (promissor
acceptor, grantor grantee) who take opposite parte, may be called
bilateral. '
Let us consider some of the contrasts of Wrongful acts (torte or
crimes) and Dispositions.
A Disposition produces in the first place a primary obligation :
a Wrong produces in the first place a secondary obligation.
Every Disposition involves Intention: a wrong may involve
either Intention or Negligence.
Both m Wrongs and in Dispositions the Intention must be
accompanied by some external act: the mere intention to offend is
not punishable without an Overt act, and the mere intention to
dispose without execution produces no legal effect. But the overt
act which clothes the wrongful intention must have a physical
character, must be some change in the material universe: the
external act in which a Disposition is incorporated may be merely,
and usually is merely, a Declaration, whether Formal, that is, a
10 PRELIMINARY DEFINITIONS.
manifestation of intention by some symbolic act prescribed by
positive law, or Formless, that is, a manifestation of intention by
any mode which the disposer chooses to adopt. In Roman law
there is, however, this distinction between Dispositions that pro-
duce jus in personam or obligation and those that produce jus in
rem or dominion, that jus in personam is produced by mere declara-
tion; jus in rem generally requires in addition to declaration a
certain physical accompaniment, namely, Tradition.
A further comparison of Wrongs and Dispositions will be facili-
tated by the employment of certain logical formulas, of which some
readers may require a brief explanation.
Every legal phenomenon may be presented in the form of a
syllogism; that is, may be analysed into three terms, and it is
useful to accustom ourselves to the analysis. A syllogism, it i
hardly necessary to say, is resolvable into three terms, whose eom-
binations compose three propositions, a major premiss, a minor
premiss, and a conclusion. In the major premises the major term is
found to be connected with the middle term; in the minor premiss
the middle term is found to be connected with the minor term:
in the conclusion the minor term is from these data inferred to be
connected with the major term. If the major, middle, and minor
terms are respectively represented by the letters A, B, C, the
following symbols will give the formula of the syllogism :
Major premiss : all Bis A;
Minor premiss : Cis B;
Conclusion : therefore C is A.
In the juristic syllogism the middle term B represents a Title,
i.e. & class, a category, or condition, to which the legislator has
annexed certain legal consequences, certain rights or obligations;
which are represented by the major term À ; the major premiss, all
B is A, representing the law. The minor term C represents certain
particular persons, plaintiff or defendant, as characterised by certain
acts or omissions, volitions and knowledge: and the minor premiss,
C is B, asserts that such actions or omissions bring these parties
under the category represented by B. The consequent nghts or
duties of such individual persons are expressed in the conclusion,
C is À.
Resuming now our comparison of Wrongs and Dispositions, but
PRELIMINARY DEFINITIONS. 11
confining ourselves to intentional wrong (dolus), we observe that
both in Wrongs and in Dispositions the middle term B of the above
syllogism is intended (an object of the intention of the offender
or disposer C): only in Dispositions the major term A as well as
the middle term B is intended. The wrongdoer desires, purposes
and intends an event which happens to be one of the Titles B in
the penal code; but, though undeterred by the menace of the
legislator, by no means desires or intends the consequences A which
that code annexes to B. These, on the contrary, he wishes and
hopes to avoid. The major term intended in the syllogism which
instipates his action is some other motive, some pecuniary ad-
vantage, or some pleasure to be gained, or some painful passion
to be assuaged. In a Disposition, on the contrary, the law, the
major premiss, B is A, of the forensic syllogism, is a premiss in the
praetical syllogism which determined the disposer to the step he
takes. His immediate intention is to bring himself under the
category B, a Title of the civil code; but he only cares for B as an
instrument or means to some legal end, as a valid Title whereby he
can establish certain rights and duties: his ulterior and principal
intent is by means of B to link himself or some other person to the
category A. A third end, a further object of intention in every
disposition, is called the Causa; and is either onerous (solutio or
obligatio) or lucrative (donatio) Or we may divide the second
end into immediate and ulterior, and call the ulterior end the
Causa.
Both in Wrongs and in Dispositions, to constitute a perfect Title
that shall generate an obligation, there must be an accord between
the mtention and the external manifestation. In dolose Wrong the
intention must accord with the overt act: in unilateral Disposition
the intention must accord with the Declaration : in bilateral Dis-
position there must be a further accord between the intentions of
the two disposers; the intention of the promissor must accord with
that of the promissee; the intention of the alienor must accord
with that of the alienee.
From the preceding it appears that the theory both of Wrongs
and of Dispositions must be based on a precise conception of the
nature of Intention. Intentional wrongs, however, are not the sole
means by which a person incurs penal obligation. The acts im-
posing secondary obligations are said to be imputable, and for such
acts the agent is said to be liable, answerable, responsible, ac-
12 PRELIMINARY DEFINITIONS.
countable. The grounds or conditions of Imputability are Intention
(dolus) and Negligence (culpa), 3 § 211. We require, therefore,
the definitions of Intention and Negligence.
Desires or wishes either attain their objects immediately and
instantaneously, or only by the intervention of other objects ante-
cedently attained. The antecedent object is called a ‘mean,’ the
consequent or mediate object is called an ‘end.’ If no object were
immediately attainable, if every mean had to be reached by an
antecedent mean, if the regression of previous conditions was un-
limited, all desire would be futile and no end could ever be attained.
There must be, then, some primary mean, some limit to the series
of antecedent conditions, some objects of desire attained by a wish.
What is the nature of these objects, and what is the name of the
wish by which they are evoked ?
The only objects that man can realize by a wish are the muscular
movements of the bodily organs.
Greek psychology does not appear to have had a proper name for
the wish which produces a movement of the limbs. Doubtless, the
words dpefts and ópekróv apply to these wishes and their objects,
but they apply equally to ulterior ends or motives, and we want a
term to signify exclusively and distinctively the primary mean.
Again, zpoalpecis (resolve or resolution) denotes the desire of an
original mean, but only one species thereof, namely, desire preceded
by deliberation or premeditation, and we are seeking for a name of
all desires that are immediately fulfilled, whether premeditated or
unpremeditated, whether the counsel of reason or the impulse of
unreflecting passion. For this purpose Will and Volition seem to
be the most appropriate words that the English language offers.
Though applicable without impropriety to distant ends, they are
perhaps more commonly applied to means, and in particular to the
command we exercise over our bodily frame. We say that we will
a movement, that the limbs obey the will, that a bodily movement
follows instantaneously upon a volition. Over whatever regions the
dominion of the Will may be extended, the direct origination of motion
in the limbs is its earliest manifestation, and continues its principal
function to the end of life. Wanting, then, a term to denote the
wish of an original mean, or rather of an object attainable without
the intervention of means, we take the generic term Will or Volition,
and give it a specific signification, denoting thereby the desire
or wish which is immediately fulfilled, whether such wish be the
PRELIMINARY DEFINITIONS. . 13
aimless dictate of a passing emotion or initiate the execution of a
many-stepped or many-staged and long-considered plan.
Having fixed the meaning of Volition, we have materials for the
definition of Intention, which is a correlative of Volition. In
popular language Intention always implies the contemplation of an
end. As a condition of responsibility it denotes the contemplation
of the immediate consequences of those muscular movements which
are the objects of Volition or determined by Will. The simplest
action is a complication of a multitude of muscular movements
produced by a multitude of Volitions. Suppose that certain com-
plicated muscular movements, the lifting of a pistol, the taking
aim at a man, the pulling the trigger, are the antecedents of a
certain event, namely, that a man is shot. If this end was contem-
plated, the shooting was intentional. Intention is the contempla-
tion of the consequence or end of bodily movements, and the belief
or expectation that it will ensue. Or we may define it the com-
bmation or co-ordination of bodily movements to a contemplated
and expected or anticipated end. -
Intention sometimes denotes a remote or ulterior end, the ulti-
mate motive of a series of subordinate ends; but for our present
purpose it is confined to the immediate consequences of those
muscular movements which are the objects of Volition. These
consequences, according to our definition of Will, are not willed,
but intended. The movements, being consequences of the volitions,
that is, standing to them in the relation of end to mean, may be said
to be both willed and intended. In the generic sense of Will and
Volition, the consequent is wished, desired, willed (épexrdv, aíperóv)
as well as the antecedent. Two cases may be distinguished : the
consequent may be the very motive or inducement of an act, and
then without doubt it is desired: or it may be of itself regarded
with aversion, and occasioned with reluctance, and willed only so far
as it is the mexorable condition of some other event which has been
determined. But even in this case it may be said to be desired : it
is a mischief which the actor would fain avoid inflicting, but he
prefers to cause it rather than forego some other object which he has
resolved to attain. (So Aristotle decides in the case of the throwing
overboard of cargo to save a ship from wreck, Eth. Nic. 3, 1.)
Intention being defined, Negligence, the negation of intention
and alternative ground of responsibility, will be more easily com-
prehended. An actor is negligent when he is ignorant of the
14 | PRELIMINARY DEFINITIONS.
consequences of his act, if his ignorance proceeds from thoughtlese-
ness, recklessness, carelessness, want of due attention. Negligence
is inadvertence to consequences to which a man might have ad-
verted, and io which he would have adverted had he been desirous
to obey the law and perform the obligations which it imposes. As
obligation may either consist in performance or forbearance, so the
negligent breach of obligation, which we have always spoken of
hitherto as if it always consisted in commission, may be either
commission or omission. The word Negligence, indeed, most
properly designates inadvertence to the consequences of omission
or inaction. Inadvertence to the consequences of commission may
be called heedlessness. If the mischievous consequences of an act
are adverted to, but on insufficient grounds are not expected to
follow, the neglect of precaution is called temerity or rashness.
The foregoing definition of Intention agrees with that given by
Aristotle, except that, instead of singling out one element, the
consequences, as the object of consciousness, he requires that all the
elements of an action, the consequences, the degree of force, the
instrument, the patient or subject, the agent, the act, should be
present to the mind of the actor, in order to make his conduct
intentional; although of these ingredients the consequences are
admitted to be one of the most important. dvros 9 ákovaíov roO
faíov kal 0v áyvotav, 76 ékotatov ddferev dy elvat ob 7] ápyi) ev aire,
elddrt rà kaÜ' Exacta év ols 4 npü£is, Ethica Nicomachea, 3, 1, 20.
(So far the definition only includes the Intentional. To make it
coextensive with the Imputable we must complete it by adding
kal Soa Ov duéderay &yvoetv doxotcw, ibid. 3, 5, 9, or, xal Stray év
éaurp 7 ápxi) 5j rijs ayvolas, ibid. 5, 8, 7.) ‘That is involuntary
(unimputable) which is caused by external compulsion or by igno-
rance. That is Voluntary (imputable) whose cause or beginning is
internal (Will, Volition) with a knowledge of the individual ingre-
dients which constitute the action, or without this knowledge, if
the ignorance is produced by negligence—if the agent is to blame
for his ignorance.” Or we may make the Voluntary inclusive of
Negligence and coextensive with the Imputable by dividing Know-
ledge, with the writer of the Eudemian Ethics, into actual know-
ledge, and possible knowledge. ézet 82 ró éxloracOat kai 7d cidévae
durrdy, Ev pev 7d Ex ew, dy 06 76 xpHobat rh emornuan, 6 Exwv 1) xpdpevos
0? ors pey és dexalws àv dyvody A€yatto, or. 8 ds od Quales, olov el
be ápéAeiav pi] éxpiro... ratr’ otv zpoodiaiperéov, Ethica Eudemia,
PRELIMINARY DEFINITIONS. 15
2,9. ‘To know or be aware has two meanings, to have knowledge
and to use knowledge; so that a man who has knowledge and does
not use it may be justly said in one sense not to know, in another
sense to know, if he fails to use it from negligence. . . . This dis-
tinction, then, must be added to complete the definition of the
voluntary. The Intentional, then, might be defined to be, that
which is desired and caused with an explicit knowledge that it would
be caused, or, with an explicit knowledge of its component elements.
: Intention (dolus) is either hasty intention (exemplified in áS(xgua),
including actions impelled by any appetite or emotion, or deliberate
intention (exemplified in à$w(a), denominated Resolve or Resolution
(spoatpeots). mpoatperdy 1d éxovotoy rd mTpoBeBovAevuévov, Ethica
Nic. 8, 2, 17. ‘That is resolved which is voluntary and premedi-
tated.’ 7 apoalpects àv ely BovAevrua] ópe£is, 1bid. 8, 8, 19. * Reso-
lution is deliberate volition.’
Negligent violation of the law (culpa, ásdprnpa) is distinguished,
on the one side, from misadventure (casus, drvxna), and, on the
other, from intentional violation of the law (dolus, á$(kgua), which
again is distinguished from deliberate violation of the law (dbix(a).
rp» 33) obcóv BrAaBay trav év rais Kowwvilats, Ta wey per dyvolas
ápaprijpará éarw, Órav unre Sy, pire ws, pire @, ute ob €vexa vméAaBe,
raira mpdfin...drav ui) mapaddyas 7) BAGS yévgrav. . . Srav 0? eldas
uiv pi] wpoBovredoas dé, ddlknua...dray 3° éx mpoaipécews, &d:Kxos «al
pox0npós, ibid. 5, 8. ‘Of the three gradations of misconduct
towards others, Fault or Negligence (culpa) is an unlawful act in
ignorance of the subject, the degree, the instrument, the con-
sequences, when it was reasonable to expect the mischief; unlawful
intention (dolus) is breach of law with knowledge of these elements,
but without premeditation; malice or depravity is evinced by the
resolution or deliberate intention of violating law.’
The distinction between Negligence and Intention, and between
hasty and deliberate intention, is not so important in the civil code
as in the criminal code and in the eye of the moralist. The criminal
code punishes less severely wrongs of inadvertence and crimes com-
mitted under provocation. But the thoughtless, incautious, im-
prudent, author of unlawful mischief, although he intended no
harm, is just as accountable, chargeable, liable to the sanction of
the civil law, and compellable to make reparation, as if his infrac-
tion of law was intentional.
Dolus being defined to be knowledge or consciousness of certain
16 PRELIMINARY DEFINITIONS.
facte, and culpa ignorance or unconsciousness of the same facte, are
clearly two states of mind which must always be opposed. No
degree of culpa will pass into dolus. Yet several expressions of the
jurists imply the contrary: e.g. Magnam tamen negligentiam
placuit in doli crimen cadere, Dig. 44,7,1,5. ‘Gross negligence is
open to the charge of fraudulent intention.’ But these statements
only mean that dolus and culpa are often undistinguishable by a
court of law. The phenomena of gross negligence are precisely
similar to those of dishonest intention, and it is often impossible for
2 court to decide which interpretation they ought to bear. Again,
as the consequences are equally mischievous, there is no reason why
they should not be subject to the same legal sanction.
In its signification of deliberate intention Dolus is often used as
an antithesis of violence and a synonym of Fraud. The reason of
this is obvious. He who can attain his ends by force does not
trouble himself with machinations and artful schemes. Wiles and
plots, when their object is unlawful, usually imply an absence of
violence and accompany manceuvres to surprise consent. It is in
this sense that Dolus is defined by Labeo. Labeo sic definit:
dolum malum esse omnem calliditatem, fallaciam, machinationem,
ad circumveniendum, fallendum, decipiendum alterum adhibitam,
Dig. 4, 8, 2. *Labeo defines dolus malus as any craft, imposition,
machination employed to overreach, delude, deceive, another.’
There is, however, no necessary antithesis between deliberate inten-
tion and violence, and we find that the edict, Si cui dolo malo
hominibus coactis damni quid factum esse dicetur, Dig. 47, 8, 2,
* Mischief with dolus malus by men assembled is subject to the same
penalty as Rapine,’ uses the term to signify premeditated violence.
There are three principal manifestations of Dolus, a conscious or
intentional infraction of law: (1) delict, or the violation of a jus
in rem, accompanied or unaccompanied with violence or intimida-
tion, and possibly without any treachery or betrayal of confidence,
e.g. theft or robbery; mala fides, involving a violation of the
eonfidence necessary to social intercourse: and then either (2) the
deliberate violation by a debtor of a jus in personam or obligation
imposed by contract ; in which case Dolus is opposed to Culpa and
Casus: or (3) any unlawful machination or circumvention leading
another person to a manifestation of Will, whether bilateral, as a
contract, or unilateral, as a testamentary disposition, or the accept-
ance or disclaimer of a succession, &c. Dolus in this form is often
PRELIMINARY DEFINITIONS.. 17
called Fraud (fraus); it is ground to support an actio doli and
in integrum restitutio on account of dolus.
Malice in English law appears to denote deliberate intention,
or rather the depravity of disposition or badness of heart (Bua)
which is assumed to be evidenced by a deliberate unlawful intention.:
Such at least is its meaning in the definition of murder. Perhaps
however, it sometimes only denotes unlawful intention (à5(xqna),
and, as rather belonging to the criminal than the civil code, it may
be regarded as equivalent to criminal intention.
In the foregoing analysis of Intention, we have chiefly considered
it as an ingredient in Torte and Crimes, As entering into Dis-
position, Intention has essentially the same character: that is to
say, we must distinguish two stages in an act of will: an imper-
fect stage which may be called Volition, or an act of will unac-
companied by knowledge of certain facts; and a perfect stage
which may be called Intention, or an act of will when accompanied
and extended by such information. There is only this difference,
that Offences are physical actions, and the Volition and Intention
involved in them relate exclusively to muscular movements and
their immediate consequences: in the analysis of Disposition we
must substitute for Austin’s statement the broader statement of
Anstotle, and consider that the Volition and Intention which
belong to the essence of Disposition relate, not, like those which
enter into torts and crimes, to a muscular act and the result which
it produces, but to an external declaration (incorporation) of an
intended disposition, and either to (A) the whole disposition or to
(B) certain of the essential elements of the disposition. This may
be illustrated by examples.
A. Of dispositions null and void (wanting the essence of true
dispositions) because Intention is excluded by error relating to
the whole disposition we have an instance when & man signs one
document believing it to be another.
B. The essential elements in respect of which an error excludes
Intention and avoids the disposition are (1) the Right to be created
by a disposition, (2) the Person to be invested with a right by a
disposition, (3) the Thing to be transferred by a disposition.
l. There is an error in the Right to be created when a promissor
means a loan and the acceptor means a donation, or vice versa.
2. There is an error as to the Person who is the object of a dis-
position ; in a devise, if the testator names one person as devisee
C
Tg PRELIMINARY DEFINITIONS.
when he means another; in a marriage, if one goes through the
ceremony with a person other than he supposes: in a donation,
when a donor gives a thing to a person who falsely personates
the intended donee: in a contract, when an order for a work of
art is given to a person who falsely personates an eminent artist.
8, Error respecting the Thing to be conveyed is called (a) error in
corpore when it relates to an individual thing; as when there is a mis-
understanding between buyer and seller or other contractors as to
the specific thing to be conveyed ; and this avoids the contract. When
a Quantitas, that is, a thing only generically determinate is to be
conveyed, a misunderstanding sometimes avoids a contract, sometimes
leaves a valid contract for the lesser of the two quantities intended.
(5) Sometimes error respecting the Qualities of the thing to
be conveyed, called inappropriately error in substantia, is held to be
essential and avoids a disposition: thus a buyer may think a bronze
vessel to be golden, or a leaden vessel to be silver, or vinegar to be
wine, or a female slave to be a male slave. In such cases, whenever
the difference of quality in the judgment of the mercantile world
would make a commodity different in kind, the error is essential :
when the difference does not amount to a difference in kind, the
error is held to be non-essential and does not avoid the disposition.
Other errors than these three, however closely they may be
connected with a disposition, and though they may have been the
principal inducements thereto, are unessential or immaterial and leave
the disposition valid. Only testamentary dispositions are in some
cases invalidated by an error in Motive. E. g. the institution of a
person as successor because & previously instituted suecessor or
an intestate successor is falsely believed to be deceased: the insti-
tution of a person as successor because he is falsely believed to be
& relative: the disinheritance inter ceteros of & son because he is
falsely believed to be dead: the bequest of property belonging to a
stranger which the testator believes to be his own; all these testa-
mentary dispositions are invalidated by error.
Sometimes Error, though it does not operate so far as to invali-
date a disposition, yet entitles the disposer to relief at the hands of
the tribunals, particularly if it was produced by the fraud (dolus)
of another party. In most countries the mitigation of the strict
legal consequences of dispositions is the work of that branch of the
judicature which administers what is called Equity in contrast with
the tribunals that administer the more rigorous rules of law (jus
PRELIMINARY DEFINITIONS. 1g
ipsum). In Rome such relief was given by the praetor in his
equitable capacity under the forms of Exceptio, Actio, In inte-
grum restitutio, the natures of which will appear in the course of
this treatise. It was sometimes, however, given by the courts of
civil law (jus strictum) ; for instance in the action called condictio
indebiti soluti. Ifa person aliened property in the mistaken belief
that he was under an obligation to do so, he could recover it baek
in the courts of civil law by this action, which belonged to the
class of personal actions and claimed a'reconveyance of property.
The nature of the remedy indicates that the error of fact had not
invalidated the alienation. Otherwise the remedy would not have
been a condictio claiming a retransfer, but a vindicatio, a real
action, contending that the property had never been effectually
aliened, that the intended transfer was inoperative.
We have seen that ignorance of the specific constituents of an
action is a ground of exculpation. This must not be extended to
ignorance of the obligations to which a person is subject under
certain circumstances, or of the sanctions by which these obliga-
tions are enforced. Hence the maxim that a party im a suit may
allege ignorance of fact, but cannot allege ignorance of law. Regula
est, juris quidem ignorantiam cuique nocere, facti vero ignorantiam
non nocere, Dig. 22, 9, 6, pr. Sciant ignorantiam facti non juris
prodesse, nec stultis solere succurri sed errantibus, ibid. $ 5. ‘The
rule is, that law is known to everybody at his own peril, facts are
not known to everybody at his own peril ‘ Ignorance of fact may
be pleaded, not ignorance of law; and relief is accorded to error, but
not to stupidity.’ The rule is founded on expediency. It would be
impossible for a court to decide whether a party was really ignorant
of the law, or, if this could be determined, whether his ignorance
was inevitable or the effect of negligence. From the impossibility
of deciding such a plea, it is not allowed to be pleaded, and igno-
rance of law is always assumed to be a case of Negligence, and
unworthy of the sovereign’s relief.
This distinction of Roman jurisprudence is parallel to one indi-
cated by the Grecian moralist. Ov yàp 7j à» ri mpoaipéces &yvota
alría rot àxova(ov àAXAà rijs uoxOnp(as, obd’ 3j kaÜóXov (yréyovrat yàp
dd ye ravrnv), ddd’ 3j Kad’ Exacta év ots kai wept & 7j mpagis. Eth.
Nic. 8,1. ‘An act is made involuntary neither by ignorance of
the primary ethical laws, which rather shows utter badness of will
(dolus); nor by ignorance of general propositions, which also (as
Cm
20 PRELIMINARY DEFINITIONS.
proceeding from negligence) is blameable (culpa); but by ignorance
of the essential elements and cardinal points of the particular action.’
[mpoatpeois here denotes the major premiss (épexrixds voüs, Eth.
Nic. 6. 1), not the conclusion of deliberation (dpefis d:avonrixy)
which is the signification defined, Eth. Nic. 3, 3.]
The parallelism however is not complete between the moral and
civil code. Ignorance of a civil law is regarded as negligence by
the civil code, and therefore men are not protected from the civil
disadvantages they incur in consequence of an ignorant disposition.
In the moral code ignorance of law is something worse than negli-
gence; for as the moral laws are merely the dictates of a well-
disposed will, e. g. such and such actions are detestable, ignorance
of these laws implies an evil will, i.e. is not culpa but the worst
form of dolus (dd¢cxla, wovnpfa). There is a closer parallelism
between the moral code and the criminal code. In the latter the
character of certain acts depends on a complication of civil and
penal law, and ignorance of these respective elements is very dif-
ferently treated by the legislator; e.g. the offspring of a female
slave in whom a man has a usufruct (life estate) belongs not to the
usufructuary (tenant for life) but to the reversioner. If then the
usufructuary appropriates such offspring, is he guilty of Theft
and subject to the sanction annexed to Theft in the criminal code ?
Not if he was ignorant of the purely civil law that assigns to the
reversioner the property in the issue of a usufructuary slave, for
such ignorance is suffieient to exclude intentional misappropriation,
Again, if the usufructuary seized and carried off with violence the
progeny of the slave, he would not be liable for Rapine, which in-
volves dolus, but he would be liable to the interdict against Vio-
lence, and would not be allowed to plead ignorance that the
violent remoyal of one’s own property was interdicted. Again, the
defendant in a rei vindicatio or hereditatis petitio is liable to
certain penalties for mala fide possession, and cannot plead igno-
rance of this penal law; bnt may plead ignorance of some purely
civil law respecting property or succession, and show that such
ignorance made him a bona fide possessor. The criminal code,
then, admits the plea of ignorance of civil law ; but does not admit
the plea of ignorance of the criminal law itself; that is, of the law
prohibiting and punishing Theft, Violence, and Mala fide posses-
sion. It does not admit any more than the moral code that such
ignorantia juris excludes the existence of dolus or deliberate wrong.
PRELIMINARY DEFINITIONS. 21
- The knowledge of law, however, which everybody is presumed to
possess, does not exist as a matter of fact, even among the well-
disposed. All systems of law are more or less irrational, and con-
tain many provisions which are hardly surmisable by any but
professional lawyers. To mitigate the injustice that the maxim
would often produce, the Roman jurisís admitted an exception in
favour of women, minors below the age of twenty-five, and soldiers.
These classes were permitted to plead ignorance of the law, except
the obvious dictates of Natural law, and were relieved against
the forfeitures and obligations thereby incurred. These classes
were excused for ignorance of the more positive and arbitrary
portions of the penal code. Thus women and minors are ex-
cused for ignorance of the incestuous nature of marriage with
collaterals ; but are not excused for violating the law against mar-
riage with ascendants or descendants, a law which is a precept of
jus gentium.
Besides the term Ignorance or Error, the above-quoted definition
of the Voluntary and Involuntary contains the term Force (Vis);
we accordingly require a precise conception of Force. Force is of
two kinds, Vis absoluta, and Vis compulsiva. Vis absoluta is
physical force, superseding the Volition of the agent in the pro-
duction of an effect ; as, for instance, when a person forces another
to sign a document by holding and guiding his hand; and such
force makes an act Involuntary. Vis compulsiva, Compulsion or
intimidation (metus), e.g. inducing a man to sign by means of
threats, leaves an action Voluntary. Of such cases Aristotle says :
puxtal pev oby eloly al roratra: mpá£ets, dolxact 96 wGdAov éExovalors.
Eth. Nic. 3,1. ‘Such acts have a mixed character, but if we are
driven to decide we must pronounce them to be Voluntary.’ Here
again we find an exact accordance between philosophic speculation
and Roman jurisprudence, and, speaking of such cases, the Roman
jurist says with admirable precision, Coactus volui: i.e. It was
under duress, perhaps, but the fact remains that finally the will
assented, and the action must be regarded as Voluntary. Si metu
coactus adii hereditatem, puto me heredem effici, quia, quamvis si
liberum esset noluissem, tamen coactus volui. Sed per praetorem
restituendus sum ut abstinendi mihi potestas tribuatur. D. 4, 2,
21, 5. ‘If fear compelled me to declare that I accepted a suc-
cession, I really beeame the successor, because, though in the
absence of danger I should have declined, yet under duress I havg
22 PRELIMINARY DEFINITIONS.
accepted. The praetor, however, will rescind my act, and restore
me to my former position and power of abstention.’ Such actions
are both Volitional (for the motor organs are set in motion by
Volition) and Intentional, for Volition is accompanied by full
knowledge of the character and consequences of the motion pro-
duced. Accordingly the Force that enters into the definition of
the Voluntary and Involuntary is limited to Vis absoluta and is
thus defined : Blacoy 82 ob 4 àpy3) E£o0ev, roratrn otoa àv jj pndey ovp-
BdAXerat 6 mpárrov 1) 6 mdoxev, ibid. ; or, Zoe 33) ró Blasoy elvar ob
EEwdev 4) àpy3) ub?» cvpBadrdopévov rod Biacdévros. ibid. ‘ Force
that makes involuntary is an external efficient, causing an action
without the concurrence of the Volition of the agent or, as he may
be called, the patient.’
Although Compulsion does not exclude Volition and Intention,
and consequently avoid a disposition, still, as we saw was the case
with Error, it may entitle the victim to relief; the terms, however,
in which the legislator promises relief imply that a Compulsory
disposition is originally valid and operative, and, in order to be
made null and void, requires to be rescinded: Ait praetor, Quod
metus causa gestum erit ratum non habebo. D. 4, 2, 1. ‘ Disposi-
tions made under the influence of intimidation shall be rescinded
(by Exception, Action, or Integral restitution), The term Gestum
or Negotium gestum is only applied to valid dispositions, and,
indeed, as was observed, an invalid or inoperative disposition would
not require to be rescinded by the supreme minister of justice.
The last general term that we propose to notice is Institution,
An Institution (e. g. Property, Obligation, Slavery, Tithe, Advow-
son) is the same thing as a Right or Obligation, but the one is
abstract, the other concrete. The relation of Institutions to Rights
and Obligations may be elucidated by the syllogism we have already
indicated. An Institution is the major term A, as the predicate
of the major premiss, or as existing in the abstract sphere of the
law: a Right or Obligation is the same major term A, as the
predicate of the conclusion, or as existing in the concrete sphere of
fact. Or perhaps with equal propriety we may identify Institu-
tions (e.g. Alteration of property by tradition, Imposition of
obligation by written contract, Acquisition of an inheritance by
descent), with the middle term B as subject of the major premiss,
i.e. as having a permanent existence in the universal law: the
same middle term B as predicate of the minor premiss, i.e. as
PRELIMINARY DEFINITIONS. 23
having a transitory existence under special limitations of time and
place and persons, is a Title. (Compare Savigny, System, § 384.)
In either case the term Institution connotes constancy and per-
manence, just as when it is used im another sense to denote the
monarch, or legislative body, or tribunals, or any other permanent
organs destined to perform certain constantly recurring functions.
If we are asked, what in Jurisprudence are the ideas correspond-
ing to the categories of Substance, Quality, Quantity, Relation, or
whatever else Logicians make the immutable framework of their
science, we must point to some of the above abstractions—Law,
Sovereign, Sanction, Obligation, Title. Without these and similar
conceptions no jurisprudence can be imagined. And to this extent
the bases of jurisprudence are natural and unchangeable, but to
this extent only. Jurisprudence has nothing corresponding to the
precise and unalterable special conceptions that furnish the first
principles of the mathematician. All the particular institutions
that fall under the above-named highest categories are positive,
that is, arbitrary and variable. While Dogmatic jurisprudence
fixes its attention on whatever is most constant or most perfect in
legislative arrangements or what might be found in an ideal state,
Historic and Comparative jurisprudence chiefly bring before our
notice what is variable in civil institutions. Let us now throw
a rapid glance over Roman law in order to indicate the extent of
these mutations in its civil code, though in so doing we shall be
forced to use by anticipation certain technical terms whose explana-
tion must be left to the course of the following treatise.
It is unnecessary to dwell on the mutations in the code of Pro-
cedure, that is, in the forms of Action, or modes prescribed by the
legislator for the enforcement of sanctioning nights.
The Substantive code may seem more permanent, but this too
changes entirely in the fundamental conceptions of its titles and
institutions.
Forms of Disposition, i.e. the voluntary Titles by which the
subject may establish certain rights and obligations put within his
reach by the sovereign, disappear after flourishing for centuries,
like types of animal life. New ones are introduced and old ones are
abolished. Witness the abolition of Testamentum comitiis calatis,
Confarreatio, In jure cessio, Nexum, Mancipatio, Literal obligation,
and the introduction of the corresponding forms of later law.
Not only do Titles change; the Rights and Obligations linked
24 . PRELIMINARY DEFINITIONS.
to these Titles are transferred in their fundamental conception. A
glance at the law (1) of Family, (2) of Property, (3) of Succession,
(4) of Obligation will convince us of this.
(1) The loss by paterfamilias of the power of life and death over
wife and children was an essential change in Manus and Patria
potestas. The introduction of tutor dativus and tutor Atilianus did
not affect the nature of Guardianship: but its change from a
private right (jus ac potestas) to a public duty was a transforma-
tion of its essence.
(2) The abolition of Mancipatio and In jure cessio and the ex-
tension of the period of Usucapio did not change the idea of
Ownership; but at an earlier period society was revolutionized
when common ownership was superseded by private ownership.
(8) The substitution of written instead of oral wills, and the
introduction of military or privileged wills, did not change the
nature of the right of Testation: but the earlier change from the
Comitial to the Mancipatory will was essential; for whereas before
to exclude intestate devolution an act of the legislature was required,
afterwards a solemn Disposition by & private individual sufficed.
Again, the nature of a universal Trust (fidei-commissum) instituted
by the Senatus-consultum Trebellianum was not essentially changed
by the Sc. Pegasianum: but the introduction of Codicils was an
essential change in testation ; for it introduced partial dispositions
in a sphere where formerly the legislator only permitted universal
dispositions. And Justinian’s benefice of inventory, entirely
changing the character of the heres, was another fundamental
change in hereditary succession.
(4) Promises assumed a new character at the prehistoric period
when they passed from the moral to the legal code; and after the
historic period obligations continued to be modified in proportion
as the growing ascendancy of aequitas over jus strictum enabled
the tribunals to conform more closely to the presumable intentions
of a wise legislature. But the most remarkable innovation in this
department was the modern invention of paper obligations (papers
payable to the bearer or holder), whereby obligation, otherwise
incapable of detachment from the person of the original creditor,
became as transferrible by singular succession from creditor to
creditor as property is from proprietor to proprietor. (See Ihering,
Geist des Roemischen Rechts, on the variability of the institutions of
the civil code.
DE IVRE CIVILI ET NATVRALI.
(i. DE IVBE CIVILI ET NATVRALI.]
$ 1. Omnes populi qui legibus et
moribus reguntur, partim suo pro-
prio, partim communi omnium ho-
minum iure utuntur. nam quod
quisque populus ipse sibi ius con-
stituit, id ipsius proprium est uo-
caturque ius ciuile, quasi ius pro-
prium ciuitatis; quod uero naturalis
ratio inter omnes homines con-
stituit, id apud omnes populos per-
aeque custoditur uocaturque ius gen-
tium, quasi quo iure omnes gentes
utuntur. populus itaque Romanus
pertim suo proprio, partim communi
omnium hominum iure utitur. quae
singula qualia sint, suis locis pro-
ponemus.
$ 2. Constant autem iura populi
Romani ex legibus, plebiscitis, sena-
tusconsultis, constitutionibus prin-
cipum, edictiseorum qui ius edicendi
habent, responsis prudentium.
§ 3. Lex est quod populus iubet
atque constituit. Plebiscitum est
quod plebs iubet atque constituit.
plebe autem a populo eo distat, quod
populi appellatione uniuersi ciues
significantur, connumeratis etiam
patriciis; plebis autem appellatione
sine patriciis ceteri ciues signifi-
cantur; unde olim patricii dice-
bant plebiscitis se non teneri, quia
sine auctoritate eorum facta essent ;
sed postea lex Hortensia lata est,
qua cautum est ut plebiscita uni-
uersum populum tenerent; itaque
eo modo legibus exaequata sunt.
$ 4. Senatusconsultum est quod
senatus iubet atque constituit, id-
que legis uicem optinet, quamuis
fuerit quaesitum.
$5. Constitutio principis est
quod imperator decreto uel edicto
26
ON CIVIL LAW AND NATUBAL LAW.
$ 1. The laws of every people
governed by statutes and customs
are partly peculiar to itself, partly
common to all mankind. The rules
enacted by a given state for its own
members are peculiar to itself, and
are called civil law; the rules
prescribed by natural reason for all
are observed by all nations alike,
and are called gentile law. Sv the
laws of the people of Rome are
partly peculiar to itself, partly com-
mon to all nations; and this dis-
tinction shall be traced, as occasion
offers, through all the branches of
the code.
$ 2. Roman law consists of sta-
tutes, plebiscites, senatusconsults,
constitutions of the emperors, edicts
of magistrates authorized to issue
them, and opinions of jurists.
§ 3. A statute is a command and
ordinance of the people: a plebi-
scite is a command and ordinance
of the commonalty. The common-
alty and the people are thus distin-
guished: the people are all the
citizens, including the patricians ;
the commonalty are all the citizens,
except the patricians. Whence in
former times the patricians main-
tained that they were not subject
to the plebiscites, as passed without
their authority; but afterwards a
statute called the lex Hortensia
was enacted, which provided that
the plebiscites should bind the -
people, and thus plebiscites were
made coordinate with statutes.
$ 4. A senatusconsult is a com-
mand and ordinance of the senate,
and is assimilated in force to a
statute, a point which was formerly
controverted.
§ 5. A constitution is an ordi-
nance of the emperor by decree,
26
uel epistula constituit. nec umquam
dubitatum est, quin id legis uicem
optineat, cum ipse imperator per
legem imperium accipiat.
$ 6. ————————————
lus autem edicendi habent magi-
stratus populi Romani; sed am-
plissimum ius est in edictis du-
orum praetorum, urbani et pere-
grini quorum in prouinciis iuris-
dictionem praesides earum habent;
item in edictis aedilium curulium,
quorum iurisdictionem in prouinczis
populi Romani quaestores habent;
nam in prouincias Caesaris omnino
quaestores non mittuntur, et ob id
hoc edictum in his prouinctis non
proponitur,
$ 7. Responsa prudentium sunt
sententiae et opiniones eorum qui-
bus permissum est iura condere.
quorum omnium si in unum sen-
tentiae concurrent, id quod ita sen-
tiunt, legis uicem optinet; si uero
dissentiunt, iudici licet quam uelit
sententiam sequi; idque rescripto
diui Hadriani significatur.
DE PERSONIS.
[1. $$ 1-7.
edict, or letter; and was always
recognized as having the force of
a statute, as the statute which in-
vests the emperor with his office
confers upon him the whole power :
of the people.
§ 6. Power to issue edicts is
vested in magistrates of the people
of Rome, the amplest authority be-
longing to the edicts of the two
praetors, the home praetor and the
foreign praetor, whose provincial
jurisdiction is vested in the pre-
sidents of the provinces, and to the
edicts of the curule ediles, whose
jurisdiction in the provinces of the
people of Rome is vested in quaes-
tors : in the provinces of the empe-
ror no quaestors are appointed, and
in these provinces, accordingly, the
edict of the ediles is not published.
$ 7. The answers of jurists are
the decisions and opinions of persons
authorized to interpret the law. If
they are unanimous their decision
has the force of law; if they dis-
agree, the judge may follow which-
ever opinion he chooses, as is ruled
by a rescript of the late emperor
n.
I. $1. Junsprudence treats exclusively of positive law: the
exclusive origin of positive law is positive legislation; the term
positive legislation including both the express or direct enactments
of the political sovereign, and the implied, indirect, cireuitous enact-
ments imported by the sovereign’s acquiescence in the ruling of
subordinate authorities.
The rules and principles denoted by the terms praetor-made law,
jurist-made law, judge-made law, are only law because they are
impliedly adopted, confirmed, and ratified by the silent acquiescence
of the sovereign legislature.
The organ by which the Jus gentium of the Romans was pro-
mulgated, which made it by quasi enactment a portion of Roman
Positive law, was principally the Edict of the Praetor peregrinus.
The relations of Roman citizens with aliens (peregrini), that is, with
the members of foreign states formerly subjugated by Rome and
1.§§1-7.] DE IVRE CIVILI ET NATVRALI. 27
now living under the protection of Roman law, were subject to the
jurisdiction of a special minister of justice called Praetor peregrinus,
who, like the Praetor urbanus, published an annual edict an-
nouncing the principles on which justice would be administered.
These principles composed: Jus gentium as opposed to Jus civium,
Jus gentium, that is to say, was not really, as Roman jurists
imagined or represented, a collection of the principles common to
the legislation of all nations, but a body of rules which the Roman
praetor thought worthy to govern the intercourse of Roman citizens
with the members of all, originally independent but now subjects
foreign nations. Accordingly, if for the definition given by Gaius
we substitute the definition * Quod edicto suo praetor peregrinus
omnibus gentibus constituit, we shall be much nearer the truth.
Gradually the rules regulating the intercourse of citizens with
aliens were extended to the intercourse of citizens with citizens,
in cases where the rigorous conditions of jus civile were not exactly
satisfied, and the precepta of Jus gentium were transferred from the
edict of praetor peregrinus to the edict of praetor urbanus,
Another organ of quasi publication, whereby the rules of jus
gentium were transformed from ideal law to positive law—from
laws of Utopia to laws of Rome— were the writings of the jurists,
who, at first with the tacit, afterwards with the express permission
of the legislature, engaged, nominally in interpreting, really in
extending the law, about the time of Cicero (De Legibus, § 1, 5),
transferred to the edict of the praetor the activity which they had
formerly displayed in developing the statutes of the Comitia and
the law of the Twelve Tables.
The portion of the edict most fertile in germs of natural law
would be the clauses in which the praetor announced, as he did
in some cases, that he would instruct the judex, whom he appointed
to hear and determine a controversy, to govern himself by a
consideration of what was aequum et bonum, i.e. by his views of
equity and expediency: and if any of the oral formularies of the
earliest system of procedure (legis actiones) contained these or
equivalent terms, such formularies may be regarded as a third
source of Gentile or Natural law.
Jus civile, i.e. jus civium, was the law of the Twelve Tables,
augmented by subsequent legislation, by juristic interpretation, and
by consuetudinary law. The institutions of jus civile may be
exemplified by such titles to property as Mancipatio and In
28 00 DE PERSONIS. [8 1-7.
Jure Cessio, contracts by the form of Nexum and Sponsio, title
to intestate succession by Agnatio or civil relationship; while
corresponding institutions of jus gentium were the acquisition of
property by Tradition, contract by Stipulation without the solemn
term Spondeo, title to intestate succession by Cognatio or natural
relationship. Other departments of life were not subject to parallel
institutes of Civil law and Natural law, but the mutual relations of
citizens with citizens as well as of citizens with aliens were exclu-
sively controlled by Gentile law: eg. the contracts called Con-
sensual, such as buying and selling, letting and hiring, partnership ;
and contracts called Real, such as the contract of loan for use or
loan for consumption.
Gentile titles to Property (jus in rem), titles which ultimately
superseded civil titles, are explained at large in Book II.
In respect of Obligation (jus in personam), Gentile law may be
divided into two classes, according to the degree in which it was
recognised by Civil law :—
A. A portion of Gentile law was recognised as a ground of
Action. To this class belong (1) the simple or Formless contracts
to which we have alluded, (2) obligations to indemnify grounded
on delict, (3) right quasi ex contractu to recover property when it
has been lost by one side and gained by the other without any
title, Dig. 12, 6, 14, and Dig. 25, 2, 25. Actions founded on this
obligation to restore (condictiones), although it was a naturalis
obligatio, Dig. 12, 6, 15, were as rigorous (stricti juris) as any in
the Civil code. In these cases the obligatio, though naturalis as
founded in Jus gentium, yet, as actionable, was said to be civilis
obligatio, Dig. 19, 5, 5, 1.
The two eminently Civil spheres of the law of obligation were
(1) speciality or Formal contracts, and (2) bilaterally penal suite.
Yet even into these provinces Gentile law forced a partial entrance.
We shall see that aliens could be parties to a Stipulatio or Verbal
contract, though not by the Civil formulary, Spondeo 8 § 93; and
to Transeriptio 8 $ 188, and Syngrapha 3 § 184, certain forms
of Literal contract; and could be made plaintiffs or defendants in
bilaterally penal suits by means of the employment of certain
Fictions, 4 § 37. This, however, was rather the extension of
Civil law to aliens than the intrusion of Gentile law into a Civil
province.
. B. Other rights and obligations of Gentile law were not ad-
t. $6 1-7.] DE IVRE CIVILI ET NATVRALI. 29
mitted as direct grounds for maintaining an action, yet were other-
wise noticed by the institutes of Civil jurispradence and indirectly
enforced. Thus a merely naturalis obligatio, though not action-
able, might (1) furnish a ground of an equitable defence (exceptio) :
for instance, on payment of & merely natural debt the receiver has
a right of retention, and can bar the suit to recover it back as a
payment made in error (condictio mdebiti soluti) by pleading the
naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a
clam by Compensatio, 4 § 61, cross demand or set-off, of a debt
that merely rests on naturalis obligatio, Dig. 40, 7, 20, 2: or a
naturalis obligatio might (2) form the basis of an accessory obliga-
tion, such as Suretyship (fidejussio) Dig. 46, 1, 6, 2, or Guaranty
(constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5,
pr. or Novation, 3 § 176, Dig. 46, 2, 1, 1, all Civil institutions
and direct grounds of action. Though these rights and obligations
of Gentile law are imperfect (obligatio tantum naturalis) as not
furnishing immediate grounds of action, yet, as being partially and
indirectly enforced by Roman tribunals, they clearly compose a
portion of Positive law. Cf. 3 §§ 88, 89 comm.
Plebiscites as well as the enactments of Comitia Centuriata were
called Leges, and were named after the tribunes by whom they
were carried, as the leges proper (rarely called populiscita) were
named after the consul or dictator by whom they were carried.
Thus Lex Canuleia, Lex Aquilia, 3 § 210, Lex Atinia, Inst. 2, 6, 2,
Lex Furia testamentaria, 2 § 225, were plebiscites named after
tribunes, the Lex Valeria Horatia was named after two consuls, the
Lex Publilia and Lex Hortensia were named after dictators.
§ 4. The legislative power of the senate was in the time of
the republic a matter of controversy. It is certain that it had
& power of issuing certain administrative decrees or instructions
to magistrates that was hardly distinguishable from legislation.
Under the emperors matters were changed. Legislation by the
Comitia, though spoken of by Gaius in the present tense, had
ceased to be a reality after the time of Tiberius, and the last
recorded lex was passed in the reign of Nerva. As early as the
time of Augustus the auctoritas of the senate began to be regarded
as the essential process in making a law, and the subsequent
rogatio of the Comitia as a mere formality, which was finally
omitted. Senatusconsults, like laws, were sometimes named after
the consuls who proposed them, and are sometimes even called
30 | DE PERSONIS. Ta. §§ 1-7.
leges: thus the measure which Gaius calls Sc. Claudianum, 1 § 84,
is subsequently referred to by him under the name of lex, 1 § 86.
Ulpian says, Non ambigitur senatum jus facere posse, Dig. 1, 8, 9,
fit is unquestioned that what the senate decrees becomes part of
the civil law.’ Of course, these senatusconsults were merely a
disguised form of imperial constitution. The sovereignty had
passed from both patricians and plebeians to the hands of an
autocrat. A measure was recommended by the emperor in an
oratio or epistola to the senate, and then proposed by the consul
who convoked the senate, and voted by the senate without oppo-
sition. Even this form was finally disused. No senatusconsult
relating to matters of civil law occurs after the time of Septimius
Severus.
§ 5. The nature of the different forms of imperial constitution
has been much controverted, and certainly varied at different
periods. They may be characterized as legislative, judicial, and
interpretative.
Edicts were legislative ordinances issued by the emperor in virtue
of the jurisdiction appertaining to him as highest magistrate, and
were analogous to the edicts of the praetors and ediles. In the
time of Gaius they had only binding force during the life of the
emperor who issued them, requiring the confirmation of his successor
for their continuing validity; but from the reign of Diocletian
their duration ceased to be thus limited.
Decreta were judicial decisions made by the emperor as the
highest appellate tribunal: or in virtue of his magisterial jurisdic-
tion, and analogous to the extraordinaria cognitio of the praetor.
Epistolae or rescripta were answers to inquiries addressed to the
emperor by private parties or by judges. They may be regarded
as interpretations of law by the emperor as the most authoritative
juris peritus. Cf. $ 94 comm.
The words of Gaius explaining why constitutions had the force
of law seem to be imperfect, and may be supplemented from
Justinian; Sed et quod principi placuit legis habet vigorem : cum
lege regia, quae de imperio ejus lata est, populus ei et in eum omne
guum imperium et potestatem concessit, Inst. 1, 2, 6. ‘Imperial
constitutions have the effect of law, because by the lex regia,
whereby the emperor is invested with his office, the people confers
on him all its sovereignty and power,’ The lex imperii, Cod. 6,
29, 3, was called by later jurists lex regia, in memory of the
1.8 1-7.] DE IVRE CIVILI ET NATVRALI. 81
lex euriata, whereby the kings were invested with regal power.
The king was proposed by the senate and elected by the Comitia
Curiata, and the election was ratified in a second assembly pre-
sided over by the king; e.g. Numam Pompilium regem, patribus
auctoribus, sibi ipse populus adscivit, qui ut hue venit, quanquam
populus curiatis eum comitis regem esse jusserat, tamen ipse de
suo imperio curiatam legem tulit, Cie. De Republ. 2, 18. A frag-
ment of a bronze tablet, on which was inscribed the lex investing
Vespasian with sovereign powers, was discovered at Rome in the
fourteenth century, and is still preserved in the Capitol.
$6. Huschke points out that the vacant space in the MS. before
Jus probably contained a definition of Edicta.
All the higher magistrates of Rome were accustomed to issue edicta
or proclamations. Thus the consuls convoked the comitia, the army,
the senate, by edict: the censors proclaimed the approaching census
by edict: the ediles issued regulations for the market by edict:
and magistrates with jurisdiction published edicts announcing the
rule they would observe in the administration of justice, the
Edicts of the Praetor urbanus, Praetor peregrinus, Aedilis curulis
being called Edicta urbana, while the Edicts of the governors
of provinces were called Edicta provincialia. These edicts, besides
being orally proclaimed, were written on white tablets (in albo)
and suspended in the fornm: apud forum palam ubi de plano
legi possit, Probus, ‘in the forum in an open space where persons
standing on the ground may read. Such an edict was always
published on entering on office (est enim tibi jam, cum magi-
stratum inieris et in concionem adscenderis, edicendum quae sis
observaturus in jure dicendo, Cie. De Fin. 2, 22), and was then
called Edictum perpetuum, as opposed to occasional proclamations,
Edictum repentinum. A clause (pars, caput, clausula, edictum)
retained from a former edict was called Edictum tralatitium,
Gellius, 8, 18; and though doubtless the edicts gradually changed
according to changing emergencies, each succeeding praetor with
very slight modifications substantially reproduced the edict of his
predecessor. In the reign of Hadrian the jurist Salvius Julianus,
called by Justinian Praetoriani edicti ordinator, reduced the edict
to its definite form, and if the yearly publication was not dis-
continued (cf. Gaius, jus edicendi habent), at all events Julian’s
coordination of Praetorian law was embodied in all subsequent
publications. Such was the origin of Jus honorarium (praetorium,
32 "DE PERSONIS. [x. §§ 1-7.
aedilicium), as opposed to Jus civile: and from what has pre-
ceded, it needs hardly be stated that the antithesis, Jus civile, Jus
honorarium, is nearly coincident with the antithesis, Jus civile, Jus
gentium.
It may be observed that Gaius does not attribute to edicts the
force of a statute: and this theoretical inferiority of Jus hono-
' yarium, for after all it was only theoretical, had a vast influence
in modelling the forms and proceedings of Roman jurisprudence.
The remedy or redress administered to a plaintiff who based his
claim on Jus civile differed from that administered on an appeal to
Jus honorarium, as we shall see when we come to treat of Bonitary
ownership, Bonorum possessio, Actio in factum, Exceptio. This
difference of remedy preserved Jus civile pure and uncontaminated,
or at least always distinguishable from Jus honorarium; but this
perpetuation of the memory of the various origins of the law, like
the analogous distinction of Equity and Common law in English
jurisprudence, was purchased by sacrificing for an insufficient object.
simplicity of rule and uniformity of process.
The legislative power of the popular assembly and the absence
of legislative power in the senate and praetor were marked by a
difference of style in the lex and plebiscite, edict, and decree of
the senate: while the lex and plebiscite employed the imperative
(damnas esto, jus potestasque esto, &c.), the resolutions of the senate
scrupulously avoid the imperative and are clothed in the forms
placere, censere, arbitrari, &c., as if they were rather recommen-
dations than commands: and the edicts and the interdicts of the
praetor are couched in the subjunctive (Exhibeas, Restituas, &c.), a
milder form of imperative. Or to show that their force and opera-
tion is limited to his own tenure of office, they are expressed in the
first person (actionem dabo, ratum habebo, vim fieri veto). Where
he has authority to command he shows it by using the imperative,
as in addressing the litigants (mittite ambo hominem, inite viam,
redite, 4 $ 18 com.) or the judge (judex esto, condemnato, absolvito).
Ihering, § 47.
In the first period of the empire, that is, in the first three
centuries of our era, it was the policy of the emperors to maintain
a certain show of republican institutions, and the administration
of the empire was nominally divided between the princeps or
emperor and the people as represented by the senate. Thus, at
Rome there were two sets of magistrates, the old republican
1.§§ 1-7] DE IVRE CIVILI ET NATVRALI. 83
magistrates with little real power, consuls, praetors, censors, tri-
bunes, quaestors, in outward form elected by the people; and the
imperial nominees with much greater real authority, under the
name of praefecti, the praefectus urbi, praefectus praetorio, prae-
fectus vigilum, praefectus annonae, praefectus aerario; for though
nominally the people and princeps had their separate treasuries
under the name of aerarium and fiscus, yet the treasury of the
people was not managed by quaestors as in the time of the
republic, but by an official appointed by the emperor. Similarly
the provinces were divided between the people and the prince,
the people administering those which were peaceful and unwarlike,
the prince those which required the presence of an army. The
governor of a province, whether of the people or the emperor, was
ealled Praeses Provinciae, though the title properly belonged to
the governor of an imperial province. The Praeses of a popular
province was a Proconsul, and the chief subordinate functionaries
were Legati, to whom was delegated the civil jurisdiction, and
quaestors, who exercised a jurisdiction corresponding to that of
the ediles in Rome. The emperor himself was in theory the Pro-
consul of an imperial province; but the actual governor, coordi-
nate with the Proconsul of a senatorial province, was the Legatus
Caesaris, while the financial administration and fiscal jurisdiction
were committed to a functionary called Procurator Caesaris, instead
of the republican Quaestor. Sometimes the same person united
the office of Procurator and Legatus, as, for instance, Pontius
Pilate.
§ 7. The opinions of a jurist had originally only the weight that
was due to his knowledge and genius; but on the transfer of
sovereign power from the hands of the people to those of a monarch,
the latter recognized the expediency of being able to direct and
inspire the oracles of jurisprudence; and accordingly Augustus
converted the profession of jurist into a sort of political function,
giving the decisions of certain authorized jurists the force of law,
Dig. 1, 2, 47. * Until Augustus, the public decision of legal ques-
tions was not a right conferred by imperial grant, but any one who
relied on his knowledge advised the clients who chose to consult
him. Nor were juristic opinions always given in a letter closed
and sealed, but were generally laid before the judge in the writing
or by the attestation of one of the suitors. Augustus, in order
to increase their weight, enacted that they should be clothed with
D
84 — DE PERSONIS. - [1. $$ 1-7.
his authority, and henceforth this office was sought for as an
nnperial favour. Compare Inst. Just. 1, 2, 8, Those jurists
who had the Jus respondendi were called Juris auctores. "Their
auctoritas resided, in the first instance, in their responsa, or the
written opinions they gave when consulted on a single case;
but in the second instance, doubtless, in their writings, which
in fact were mainly a compilation of their responsa, a fact which
has left its traces in the disjointed and incoherent style which
disagreeably characterizes Roman juristic literature. In the course
of centuries the accumulation of juristic writings of coordinate
authority was a serious embarrassment to the tribunals. To remedy
this evil, a.p. 426, Theodosius and Valentinian enacted what is
called the law of citations, Cod. Theodosianus, 8, limiting legal
authority to the opinions of five jurists, Gaius, Papinian, Ulpian,
Paulus, Modestinus, and of any other jurists whom these writers
quoted, provided that such quotations should be verified by refer-
ence to the original writings of these juris auctores. In case of
& divergence of opinion, the authorities were to be counted, and the
majority was to prevail. In case of an equal division of authorities,
the voice of Papinian was to prevail (see $$ 194—196 comm).
A.D. 588, Justinian published his Digest or Pandects, a compilation
of extracts from the writings of the jurists, to which he gives legis-
lative authority. Every sentence, accordingly, of these passages is
called a lex, and the remainder of their writings is pronounced to
be absolutely void of authority. To prevent the recurrence of the
evil which his codification was intended to remove, and confident
in the lucidity and adequacy of his Digest and Code, Justinian
prohibits for the future the composition of any juristic treatise
or commentary on the laws. If any one should disregard the
prohibition, the books are to be destroyed and the author punished
as guilty of forgery (falsitas), Cod. 1, 17, 2, 21. |
Besides the sources of law enumerated by Gaius, the Institutes
of Justinian mention Custom or Usage, the source of consue-
tudinary or customary law (jus non scriptum, consensu receptum,
moribus introductum). To this branch of law are referred, with
other rules, the invalidity of donations between husband and wife,
Dig. 24, 1, 1, the power of making a will for an infant successor
who dies before the age of puberty (pupillaris substitutio), Dig.
28, 6, 2, pr. and universal succession in Coemption and Adrogation,
8 $82. See also 4 $6 26, 27, We may suppose that Customary
1.$8] DE IVRIS DIVISIONE. 35
law, like Roman law in general, would fall into two divisions, Civil
law and Gentile law, the former embracing what Roman writers
sometimes speak of as mores majorum. Before the time of Gaius,
however, most, if not all, of Customary law must have been taken
up mto the edict of the praetor or the writings of the jurists, Cic.
De Invent. 2, 22; i.e. unwritten law must have changed its char-
acter and have been transformed into written law.
[i]. DE 1VRIS DIVISIONS. | ON THE BRANCHES OF THE LAW.
$8. Omneautem iusquo utimur, — $8. The whole of the law by
uel ad personas pertinet uel ad res which we are governed relates either
vel ad actiones. et prius uideamus to persons, or to things, or to pro-
de personis. cedure; and let us first examine
the law of persons.
$8. What are the leading divisions of law—what are the main
masses into which legislation naturally breaks itself— what are the
joints and articulations which separate the whole code into various
subordinate codes, like the different limbs and members of an
organic whole—-what is the import of the Gaian division into jus
personarum, jus rerum, jus actionum, or rather, to adhere to the
classical phrases, jus ad personas pertinens, jus ad res pertinens,
jus ad actiones pertinens ?
By jus ad actiones pertinens, to begin with the easier part of the
problem, there is no doubt that the inventor of the division intended
to designate the law of PROCEDURE as opposed to the law of
rights; the adjective code, to use Bentham's phraseology, as opposed
to the substantive code. There is as little doubt that in the Insti-
tutions of Gaius this design is not executed with precision, and
that, instead of the law of procedure, the last portion of his treatise
rather contains the law of sanctioning rights, as opposed to the
law of primary rights. Or perhaps we should say that the legislative
provisions respecting Procedure have a double aspect: a purely
formal aspect, so far as they give regularity and method to the
enforcement of sanctioning nights; and a material aspect, so far as
certain stages of procedure (e.g. litis contestatio and res judicata)
operate like Dispositions or any other Titles to modify the substan-
tive rights of the contending parties. Procedure, then, is treated
of in these Institutions partly indeed in its formal character, but
still more in its material character, i.e. so far as its incidents can
be regarded as belonging to the substantive code,
D2
86 | DE PERSONIS. [1. $8.
It 1s more difficult to determine the principle of the other division,
the relation of the law of Persons to the law of 'Things. "They both
deal with the rights and duties of persons in the ordinary modern
acceptation of the word; why then, we may inquire, are certain
rights and duties of persons separated from the rest and dealt with
under the distinguishing category of jura personarum? It is not
enough to say with Austin that the law of Things is the universal
or general portion of the law, the law of Persons a particular and
exceptional branch; that it is treated separately on account of no
essential or characteristic difference, but merely because it is com-
modious to treat separately what is special and exceptional from
what is general and universal. This answer furnishes no positive
character of the law of Persons, but only the negative character
of anomaly, i.e. of unlikeness to the larger portion of the law;
but it would be difficult to show that the law of Persons is more
exceptional, anomalous, eccentrie, than the Civil dispositions as
opposed to the Natural or Gentile dispositions of the law of Things.
We must look to the details of the law of Persons, and observe
whether its dispositions have any common character as contrasted
with the dispositions of the law of Things. The law of Persons,
in other words, the law of Status, classifies men as slaves and free,
as citizens (privileged) and aliens (unprivileged), as paterfamilias
(superior) and filiusfamilias (dependent). The law of Things looks
at men as playing the parts of contractors or of neighbouring
proprietors ; in other words, the law of Persons considers men as
UNEQUALS, the law of Things considers them as EQUALS : the
one may be defined as the law of relations of inequality, the other as
the law of relations of equality.
It may induce us to believe that the law of unequal relations
and the law of equal relations is a fundamental division of the
general code, if we consider how essential are the ideas of equality
and inequality to the fundamental conception of law. If we ventured
on a Platonic myth, we might say that Zeus, wishing to confer the
greatest possible gift on the human race, took the most opposite
and uncombinable things in the universe, Equality and Inequality,
and, welding them together indissolubly, called the product by the
name of political society or positive law.
The assumption will hardly be controverted, that in the relations
of subject to subject, Positive law, like Ethical law, recognizes, as
an ideal at least, the identity of the just (lawful) with the equal.
1. $ 8.] DE IVRIS DIVISIONE. | 37
Inequality, however, is no less essentially involved in positive law.
We have seen that there is no right and no duty by positive law
without a legislator and sovereign to whom the person owing the
duty is in subjection. On the one side weakness, on the other
irresistible power. Positive rights and duties, then, imply: both .
the relation of subject to subject, and the relation of subject to
sovereign or wielder of the sanction, in other words, both the relation
of equal to equal, and the relation of unequal to unequal. It is
the more surprising that Austin should apparently have failed to
seize with precision this conception of the law of Persons, as he
makes the remark, in which the whole truth seems implicitly con-
tained, that the bulk of the law of Persons composes the Public,
Political, or Constitutional code (jus publicum). Political society
or government essentially implies subordination. It implies, on
the one hand, sovereign power reposing in various legislative
bodies, distributed, delegated, and vested in various corporations,
magistrates, judges, and other functionaries; on the other hand,
private persons or subjects subordinate to the sovereign power and
to its delegates and ministers. The different forms of government
are so many forms of subordination, so many relations of superior
and inferior, that is, so many relations of unequals. Public law,
then, is a law of Status, and the law of Persons or law of Status in
the private code is the intrusion of a portion of the public code
into the private code; or, in barbarous and semi-civilized legisla-
tions, the disfigurement of private law by the introduction of
relations that properly belong to publie law. For instance, the
most salient institution of the ancient Roman law of Persons, the
power of life and death over wife and child that vested in the father
of the household, was the concession to a subject of an attribute
that properly belongs to the sovereign or a publie functionary.
Another institution, slavery, placed one subject over another in
the position of despotic sovereign. The relation of civis to pere-
grinus, so far as any rights at all were accorded to peregrinus, may
be conjectured to have originally been that of patronus to cliens,
that is to say, of political superior to political inferior.
Government or positive law has usually commenced in the in-
vasion by the stronger of the (moral) rights of the weaker; but
80 necessary is inequality to equality, or subordination to coordina-
tion, that the (moral) crimes of ancient conquerors are regarded
with less aversion by philosophic historians, as being the indis-
38 | DE PERSONIS. [1.$ &
pensable antecedents of subsequent civilization. The beginnings,
then, of positive law have been universally the less legitimate form
of inequality, inequality between subject and subject, leaving ite
traces in dispositions of the civil code: but the advance of civiliza^
tion is the gradual elimination of inequality from the law, until
little remains but that between magistrate and private person, or
sovereign and subject. Modern society has advanced so far on the
path of equalization, in the recognition of all men as equal before
the law, that the distinctions of status, as they existed in the
Roman law of persons, are almost obliterated from the private code.
Slavery has vanished ; parental and marital power are of the mildest
form; civilized countries accord the same rights to cives and
peregrini; guardians (tutores) in modern jurisprudence, as in the
later period of Roman law, are considered as discharging a publio
function, and accordingly the relation of guardian and ward may
be regarded as a portion of the public code.
Before we terminate our general remarks on the nature of status,
it is necessary to distinguish from the law of Persons a department
of law with which, in consequence of a verbal ambiguity, it is
sometimes confounded. Blackstone deserves credit for having re-
cognized Public law as part of the law of Persons; but he also
included under the law of Persons that department of primary
rights to which belong the right of free locomotion, the right of:
using the bodily organs, the right to health, the right to reputation,
and other rights which perhaps more commonly emerge in the
redress meted out for their violation, that is, in the corresponding
sanctioning rights, the right of redress for bodily violence, for
false imprisonment, for bodily injury, for defamation, and the like.
These, however, are not the special and exceptional rights of certain
eminently privileged classes, but the ordinary nghts of all the
community, at least of all who live under the protection of the
law; they belong to filiusfamilias as well as to paterfamilias, to
peregrinus and latinus as well as to civis. The rights in question,
that is to say, do not belong to the law of unequal rights, or the
law of Persons, but to the law of equal rights, or the law of
Things.
The anomalous institution of slavery, however, furnishes a ground
for controverting this arrangement; for, as by this legalized
iniquity of ancient law, the slave, living as he did, not so much
under the protection as under the oppression of the law, was
1.$9] DE JURE PERSONARUM. 39
denuded of all the nghts of humanity, including those of which
we speak, we cannot say that these rights belong to servus as
well as to liber. The same, however, may be said of contract
rghts and rights of ownership, for the slave had neither part
nor lot in these any more than in the right of a man to the
use of his own limbs. In defining, therefore, jura rerum to be
the equal rights of all, we must be understood to mean, of all who
have any rights. Perhaps, indeed, instead of saying that jura
rerum are the rights of men regarded as equal, it would be more
exact to say, that while jus personarum regards exclusively the
unequal eapacities, that is, the unequal rights of persons, jus rerum
treats of rights irrespectively both of the equality and the inequality
of the persons in whom they are vested, leaving their equal or
unequal distribution to be determined by jus personarum.
In order to mark the natural position of these rights in the civil
eode, I have avoided designating them, with Blackstone, by the
name of Personal rights, a term which I am precluded from using
by yet another reason. I have employed the terms Personal right
and Real right to mark the antithesis of nghts against a single
debtor and rights against the universe. Now the nghts in ques-
tion are rights that imply a negative obligation incumbent on all
the world, that is to say, in our sense of the words they are not
Personal, but Real.
As contrasted with Acquired rights (Erworbene Rechte, jus quae-
situm) they are called Birthrights or PRIMORDIAL nights
(Urrechte), names which are open to objection, as they may seem to
imply a superior dignity of these mghts, or an independence, in
contrast with other rights, of positive legislation, characters which
the name is not intended to connote. For purposes of classi-
fication this branch of primary rights is of minor importance.
Unhke Status, Dominion, Obligation, Primordial rights are not
the ground of any primary division of the code. The actions
founded on the infraction of Primordial rights partly belong to
the civil code of obligation arising from Tort (e.g. actio inju-
riarum), partly and principally to the criminal code.
[ir DE CONDICIONE HOMINVX.] ON DIVERSITIES OF CONDITION.
§ 9. Et quidem summa diuisio $ 9. The first division of men by
de iure personarum haec est, quod the law of persons is into freemen
omnes homines aut liberi sunt aut and slaves.
serui.
40
§ 10. Rursus liberorum hominum
alti ingenui sunt, alti libertini.
$11. Ingenui sunt qui liberi
nati sunt; libertini, qui ex iusta
seruitute manumissi sunt.
§ 12. Rursus libertinorum (fria
sunt genera ; nam aut ciues Romani
aut Latini aut dediticiorum) nu-
mero sunt. de quibus singulis dis-
DE PERSONIS.
[1. $$ 9-12.
$ 10. Freemen are divided into
freeborn and freedmen.
. $11. The freeborn are free by
birth; freedmen by manumission
from legal slavery.
§ 12. Freedmen, again, are di-
vided into three classes, citizens of
Rome, Latins, and persons on the
footing of enemies surrendered at
discretion. Let us examine each
class in order, and commence with
freedmen assimilated to enemies
surrendered at discretion.
piciamus : ac prius de deditictis.
§ 12. As Gaius has not marked very strongly the divisions of
the present book, it may be worth while to consider what are the
leading branches of the doctrine of Status. Status falls under
three heads,—liberty (libertas), citizenship (civitas), and domestic
position (familia).
Under the first head, men are divided into free (liberi) and slaves
(servi): the free, again, are either free by birth (ingenui) or by
manumission (libertini) We have here, then, three classes to
consider: ingenui, libertini, servi.
Under the second head men were originally divided into citizens
(cives) and aliens (peregrini) The rights of citizens fall into two
branches, political and civil, the former being electoral and legisla-
tive power (jus suffragii) and capacity for office (jus honorum); the
latter relating to property (commercium) or to marriage (connu-
bium). Aliens were of course devoid of the political portion of
these rights (suffragium and honores); they were also devoid of
proprietary and family rights as limited and protected by the civil
law (commercium and connubium), though they enjoyed corre-
sponding rights under the jus gentium. At a subsequent period
a third class were intercalated between cives and peregrini, namely,
latini, devoid of the political portion of the franchise, and enjoying
only a portion of the private franchise, commercium without con-
nubium. Here also, then, we have three classes, cives, latini, pere-
grini.
The powers of the head of a family were nominally three, potes-
tas, manus, mancipium : potestas, however, was either potestas do-
minica, power over his slaves, or potestas patria, power over his
children, which, at the period when Roman law is known to us,
were different in kind; so that the rights of paterfamilias were
1. $§ 9-12.] DE JURE PERSONARUM. 4a
really fourfold. Manus or marital power placed the wife on the
footing of filiafamilias, which was the same as that of filiusfamilias.
Paterfamilias had a legal power of selling (mancipare) his children
into bondage; and mancipium, as denoting a person, designated
a filiusfamilias who had been sold by his parent as a bondsman
to another paterfamilias. In respect of his purchaser, such a bonds-
man was assimilated to a slave: in respect of the rest of the world,
he was free and a citizen, though probably his political capacities
were suspended as long as his bondage (mancipii causa) lasted.
As slaves are treated of under the head of libertas, and the status
of the wife (manus) was exactly the same as that of the son, we
may say, that in respect of domestic dependence or independence
(familia), as well as in respect of libertas and civitas, men are
divided into three classes,—paterfamilias, filiusfamilias, and man-
cipium ; paterfamilias alone being independent (sui juris), the other
two being dependent (alieni juris) in unequal degrees.
These nine classes are not examined by Gaius with equal minute-
ness. Under the first head he principally examines the libertini :
the classes under the second head, cives, latini, peregrini, are only
noticed indirectly, i.e. so far as they present a type for the classifi-
cation of libertini ; and the bulk of the first book of the Institutions
is devoted to domestic relations.
In modern jurisprudence, Status having disappeared, the law of
domestic relations—the relation of husband to wife, parent to child,
guardian to ward—constitutes the whole of that of which formerly
it was only a part, the law of Persons. It differs from the rest of
the civil eode in that, while the relations of Property and Obligation
are artificial and accidental, the relations governed by the code of
the Family are natural, and essential to the existence of the human
race: so much so that the principal relations of the family extend
to the rest of the animal world, and the portion of the code relating
to them is called by Ulpian pre-eminently jus Naturale D. 1, 1, 3.
Secondly, whereas every feature of Property and Obligation is the
creation of political law, Domestic life is only partially governed
by political law, which leaves the greater portion of its rights
and duties to be ruled by the less tangible dictates of the moral
law.
The pure law of the Family, that is, when we exclude all consi-
deration of Property and Obligation relating to property, is of very
moderate compass: but with the pure code of the family it is con-
42 DE PERSONIS. [1. $$ 13-27,
venient to aggregate what we may call with Savigny, § 57, the
applied code of the Family, i.e. such of the laws of Property and
Obligation as concern members of the family group—husband and
wife, parent and child, guardian and ward. The main divisions
then of the substantive code are Family law Pure and Applied; the
law of Property; and the law of Obligation. If, in view of its im-
portance, we separate from the law of Property the law of Rerum
Universitates, confining the law of Property to the province of Res
singulae, we may add to the three we have enumerated a fourth
division, the law of Successions.
[nr DE DEDITICHS VEL LEGE
AELIA SENTIA. |
. $13. Lege itaque Aelia Sentia
cauetur, ué qui serui a dominis poe-
nae nomine uincti sent, quibusue
stigmata inscripta sint, deue quibus
ob noxam quaestio tormentis habita
git et in ea noxa fuisse conuicti sint,
quiue ut ferro aut cum . bestiis de-
pugnarent traditi sint, inue ludum
custodiamue contecti fuerint, et
postea uel ab eodem domino uel ab
alio manumissi, eiusdem condicionis
liberi fiant, cuius condicionis sunt
peregrini dediticit.
[V. DE PEREGRINIS DEDITICII8. |
§ 14. Vocantur autem peregrini
dediticii hi qui quondam aduersus
populum Romanum armis susceptis
pugnaverunt, deinde uicti se dedi-
derunt.
$15. Huius ergo turpitudinis
seruos quocumque modo et cuius-
cumque aetatis manumissos, etsi
pleno iure dominorum fuerint,
numquam aut cives Romanos aut
Latinos fieri dicemus, sed omni
modo dediticiorum numero consti-
tui intellegemus.
FREEDMEN ASSIMILATED TO SURBEN-
DERED FOES AND DISPOSITIONS OF
THE LEX AELIA SENTIA.
$13. The law Aelia Sentia en-
acts that slaves who have been
punished by their proprietors with
chains, or have been branded, or
have been examined with torture
on & criminal charge, and have been
convicted, or have been delivered
to fight with men or beasts, or bave
been committed to & gladiatorial
school or a public prison, if subse-
quently manumitted by the same
or by another proprietor, shall ac-
quire by manumission the status of
enemies surrendered at discretion.
CONCERNING SURRENDERED
ENEMIES.
$ 14. Surrendered enemies are
people who have taken up arms
and fought against the people of
Rome and having been defeated
have surrendered.
$ 15. Slaves tainted with this
degree of criminality, by whatever
mode they are manumitted and at
whatever age, and notwithstanding
the plenary dominion of their pro-
prietor, never become citizens of
Rome or Latins, but can only ac-
quire the status of enemies who
have surrendered.
1.$ 13-27.]
$16. Si uero in nulla tali tur-
pitudine sit seruus, manumissum
modo ciuem Romanum, modo La-
tinum fieri dicemus.
$17. Nam in cuius persona tria
haec concurrunt, ut maior sit anno-
rum triginta, et ex iure Quiritium
domini, et iusta ac legitima manu-
missione liberetur, id est uindicta
aut censu aut testamento, is ciuis
Romanus fit; sin uero aliquid
eorum deerit, Latinus erit.
[Vi. DE MANVMISSIONE VEL CAVSAE
PROBATIONE. |
$ 18. Quod autem de aetate serui
requiritur, lege Aelia Sentia intro-
ductum est. nam ea lex minores
XXX annorum seruos non aliter
uolut manumissos ciues Romanos
fieri, quam si uindicta, apud con-
silium iusta causa manumissionis
adprobata, liberati fuerint.
$19. Iusta autem causa mauu-
missionis est ueluti si quis filium
filiamue, aut fratrem sororemue
naturalem, aut alumnum, aut paeda-
gogum, aut seruum procuratoris
habendi gratia, aut ancillam matri-
monii causa apud consilium manu-
mittat.
[VII DE CONSILIO ADHIBENDO.]
$ 20. Consilium autem adhibetur
in urbe Roma quidem quinque
senatorum et quinque equitum Ho-
manorum puberum; in prouinciis
autem uigiuti recuperatorum ciuium
DE LIBERTINIS. 43
$ 16. If unstained by offences of
80 deep & dye, manumission some-
times makes the slave a citizen of
Rome, sometimes a Latin.
$17. A slave in whose person
these three conditions are united,
thirty years of age, quiritary owner-
ship of the manumitter, liberation
by a civil and statutory mode of
manumission, i.e. by default in a
fictitious vindication, by entry on
the censor's register, by testamen-
tary disposition, becomes a citizen
of Rome: a slave who fails to
satisfy one of these conditions be-
comes only a Latin.
ON MANUMISSION AND PROOF OF
ADEQUATE GROUNDS OF MANU-
MISSION.
$ 18. The requisition of a certain
age of the slave was introduced by
the Lex Aelia Sentia, by the terms of
which law, unless he is thirty years
old, a slave cannot on manumission
become a citizen of Rome, unless the
mode of manumission is fictitious
vindication, preceded by proof of
adequate motive before & body of
judicial assessors of the praetor.
19. There is an adequate motive
of manumission if, for instance, a
natural child or natural brother or
sister or foster child of the manu-
mitter's, or a governor of the manu-
mitter's child, or a male destined to
be employed as an agent in business,
or & female destined to become the
manumitter's wife, is presented to
the Council for manumission.
CONCERNING THE CONSTITUTION
OF THE COUNCIL.
$ 20. The council of assessors is
composed at Rome of five senators
and five Roman knights above the
age of puberty: in the provinces of
twenty recuperators, who must be
44
Romanorum, idque fit ultimo die
conuentus; sed Romae certis die-
bus apud consilium manumittuntur.
maiores uero triginta annorum serui
semper manumitti solent, adeo ut
uel in transitu manumittantur, ue-
luti cum praetor aut pro consule in
balneum uel in theatrum eat.
$ 21. Praeterea minor triginta an-
norum seruus [manumissus] potest
ciuis Romanus fieri, si ab eo domino
qui soluendo | non erat, testamento
eum liberum et heredem relictum
(24 uersus in C legi nequeunt.)
$ 22. homines Latini
Juniani appellantur; Latini ideo,
quia adsimulati sunt Latinis coloni-
aiiis; luniani ideo, quia per legem
Iuniam libertatem acceperunt, cum
olim serui uiderentur esse.
§ 23. Non tamen illis permittit
lex Iunia uel ipsis testamentum
facere, uel ex testamento alieno
capere, uel tutores testamento dari.
$ 24. Quod autem diximus ex tes-
tamento eos capere non posse, ita
intellegemus, ne quid directo here-
ditatis legatorumuenomine eos posse
capere dicamus; alioquin per fidei--
commissum capere possunt.
$ 25. Hi uero qui dediticiorum
numero sunt, nullo modo ex testa-
mento capere possunt, non inagis
quam quilibet peregrinus, nec ipsi
testamentum facere possunt secun-
dum id quod magie placuit.
$ 26. Pessima itaque libertas
eorum est qui dediticiorum numero
sunt; nec ulla lege aut senatuscon-
sulto aut constitutione principali
aditus illis ad ciuitatem Romanam
datur.
DE PERSONIS.
[1. $$ 13-27.
Roman citizens, and who hold their
session on the last day of the assize.
At Rome the council holds its session
on certain days appointed for the
purpose. <A slave above the age of
thirty can be mauumitted at any
time, and even in the streets, when
the praetor or proconsul is on his
way to the bath or theatre.
$ 21. Under the age of thirty a
slave becomes by manumission a
citizen of Rome, when his owner
being insolvent leaves a will in
which he gives him his freedom and
institutes him his heir (2 $ 154),
provided that no other devisee ac-
cepts the succession.
$ 22. Slaves manumitted in writ-
ing, or in the presence of witnesses,
or at a banquet, are called Latini
Juniani: Latini because they are
assimilated in status to Latin co-
lonists ($ 131), Juniani because
they owe their freedom to the lex
Junia, before whose enactment they
were slaves in the eye of the law.
$ 23. These freedmen, however,
are not permitted by the lex Junia
either to dispose of their property
by will or to take by devise or be-
quest, or to be appointed testamen-
tary guardians.
§ 24. Their incapacity to take
under a will must only be under-
stood as an incapacity to take
directly as successors or legatees,
not to take indirectly as benefi-
ciaries of a trust.
§ 25. Freedmen classed with sur-
rendered enemies are incapable of
taking under a will in any form, as
are other aliens, and are incom-
petent to make a will according to
the prevalent opinion.
§ 26. It is only the lowest grade
of freedom, then, that is enjoyed
by freedmen assimilated to surren-
dered aliens, nor does any statute,
senatusconsult, or constitution open
to them a way of obtaining Roman
citizenship.
t. §§ 13-27.
§ 27. Quin etiam in urbe Roma
uel intra centesimum urbis Romae
miliarium morari prohibentur ; et si
qui contra ea fecerint, ipsi bonaque
eorum publice uenire iubentur ea
condicione, ut ne in urbe Roma
uel intra centesimum urbis Romae
miliarium seruiant neue umquam
manumittantur; et si manumissi
fuerint, serui populi Romani esse
iubentur. et haec ita lege Aelia
Sentia conprehensa sunt.
DE LIBERTINTS.
45
$ 27. Further, they are forbid-
den to reside in Rome or within
the hundredth milestonefrom Rome;
and if they disobey the prohibition,
their persons and goods are directed
to be sold on the condition that
they shall be held in servitude be-
yond the hundredth milestone from
Rome, and shall be incapable of
subsequent manumission, and, if
manumitted, shall be the slaves of
the people of Rome: and these pro-
visions are dispositions of the lex
Aelia Sentia.
§ 14. Peregrini dediticu. Cf. Livy 1, 88.
$15. Pleno jure. Cf. $54and 2 § 41.
$ 17. Manumission was either a publie or a private act. When
manumission, besides freeing a slave from the dominion of his pro-
prietor, converted him into a citizen of Rome, it was not a matter
of merely private interest to be accomplished by the sole volition
of the proprietor. Accordingly, the three modes of manumission
which conferred the Roman franchise on the manumitted slave,
testamento, censu, vindicté, involved in different forms the inter-
vention of the State.
Wills were originally executed at the Comitia calata, 2 § 101,
where the dispositions of the testator, including his donations of
freedom, received legislative sanction, being converted into a private
law by the ratification of the sovereign assembly. When a new
form of will was introduced, 2 § 102, testators retained their power
of manumission, although the people here at the utmost were
only symbolically represented by the witnesses of a mancipation.
Bequests of liberty were either direct or indirect. A direct bequest
of liberty (directo data libertas) made the manumitted slave a freed-
man of the testator (libertus orcinus, Inst. 2, 24, 2): an indirect
bequest, that is, a request to the successor to manumit the slave
(fideicommissaria libertas), made the slave on manumission a freed-
man of the successor, 2 § 266.
In manumission by the Census the interests of the State were
represented by the censor. Censu manumittebantur olim qui lus-
trali censu Romae jussu dominorum inter cives Romanos censum
profitebantur, Ulpian 1,8. * Registry by the censor was an ancient
mode of manumission by the quinquennial census at Rome when
46 DE PERSONIS. [1. $$ 13-27.
& slave was ordered by his owner to make his return of property on
the register of Roman citizens Ex jure civili potest esse contentio,
quum quaeritur, is qui domini voluntate census sit, continuone an
ubi lustrum conditum liber sit, Cic. De Orat. 1,40. ‘It is a question
of civil law, when a slave is registered with his owner's sanction,
whether his freedom dates from the actual inscription on the
register or from the close of the censorial period. Ulpian speaks
of the census as a thing of the past. Since the Christian era only
three had been held, the last under Vespasian, a.p. 74.
In manumission by Vindicta the State was represented by the
Praetor. The vindicta or festuca was a rod or staff, representing
a lance, the symbol of dominion, with which the parties in a real
action (vindicatio) touched the subject of litigation as they solemnly
pronounced their claim. Accordingly it was used in a suit respect-
ing freedom (liberalis causa), for this, as status is a real right (jus
in rem), was a form of real action, and was sometimes prosecuted
by way of genuine litigation, sometimes was merely a solemn
grant of liberty, that is, a species of alienation by surrender in the
presence of the magistrate (in jure cessio). In a liberalis causa the
slave to be manumitted, being the subject of the fictitious litigation,
could not himself be a party, but was advocated by a vindex or
adsertor libertatis, who in later times was usually represented by
the praetor’s lictor. The adsertor grasping the slave with one of
his hands, and touching him with the vindicta, asserted his freedom,
4 $16. The proprietor quitting his grasp of the slave (manu
mittens) and confessing by silence or express declaration the justice
of the claim, the magistrate pronounced the slave to be free. This
procedure belonging to the praetor's voluntary, not his contentious,
jurisdiction, did not require the praetor to be seated on his elevated
platform in the comitium (pro tribunali), but might be transacted
by him on the level ground (de plano); and as the mere presence of
the praetor constituted a court (jus), he was usually seized upon for
the purpose of manumissions as he was preparing to take a drive
(gestatio), or to bathe, or to go to the theatre, $ 20.
§ 18. The lex Aelia Sentia passed in the reign of Augustus, in
the same year with the lex Julia de maritandis ordinibus, a.p. 4,
and named after the consuls Sextus Aelius Catus and Caius Sentius
Saturninus, was intended to throw obstacles in the way of acquiring
the Roman franchise. One of its enactments provided that a slave
under the age of thirty could not be made a citizen unless manu4
2. §§ 13-27.] DE LIBERTINIS. 47
mitted by Vindicta, after proof of adequate motive before a certain
judicial board. We may inquire what would be the effect of manu-
mission if the causae probatio were omitted. Inscription on the
censor’s register was probably entirely null and void, as this cere-
mony was either a mode of making a Roman citizen or it was
nothing. Testamentary manumission, as we learn from Ulpian,
left the man legally a slave, but gave him actual liberty (possessio
libertatis, in libertate esse, as opposed to libertas), a condition
recognized and protected by the praetor. Manumission by Vin-
dicta probably gave the slave freedom without the franchise, i.e.
made him a peregrinus. The subsequent lex Junia Norbana ap-
parently provided that, in the absence of causae probatio, the
minor triginta annis manumissus, whether testamento or vindicta,
should belong to the new class which it introduced, namely, the
latin. Hence, by an intelligible anachronism, Gaius, § 29, § 31,
speaks of Latini made by the lex Aelia Sentia.
$19. Alumnus denotes a slave child reared by the manumitter,
as appears from the following passage: Alumnos magis mulieribus
conveniens est manumittere, sed et in viris receptum est, satisque
est permitti eum manumitti in quo nutriendo propensiorem animum
fecerint, Dig. 40, 2, 14. ‘Foster children are more naturally
manumitted by women than by men, though not exclusively; and
it suffices to allow the manumission of a child who has won his
proprietor’s affection in the course of his education.’
$20. The Equites Romani, who at Rome composed a moiety of
the judicial assessors, are opposed to Equites equo publico. Eques
Romanus was such merely by his census: Eques equo publico, in
the latter days of Rome, was a youth nominated by the emperor to
the turmae equitum ; not, however, intended for actual service with
the legions, but merely marked out as an expectant of future
employment in higher public functions, military or civil. The title
of Princeps juventutis, often conferred by the emperors on their
successors designate, denoted the leader of the Equites equo publico.
In the time of Augustus the list of judices (album judicum) con-
sisted of three panels (decuriae) Senatores, Equites Romani, and
Equites equo publico. Augustus added a fourth, the Ducenarii,
those whose census amounted to 200,000 sesterces, who judged
minor cases; and subsequently Caligula added a fifth.
Recuperators are judges not taken from the panel (album judi-
eum),
48 DE PERSONIS. [1. 8j. 13-27.
§ 21. Ulpian adds, 1, 14, that a slave who otherwise would only
have become dediticius, or a freedman of the lowest class, if he
is instituted the heres necessarius of an insolvent, becomes civis
Romanus. Mommsen would supplement the text in this section
with the following words—‘relictum alius heres nullus excludit
neque ullus alius ex eo testamento heres existat idque eadem lege
cautum est. Cf. Ulp. 1, 14, and for an account of different grades
of heredes see 2 $ 174. In respect of what is missing in the re-
mainder of the lacuna Krueger and Studemund give references to
Inst. 1, 6, 1, and Ulp. 1, 14.
When manumission was a purely private act, it could not confer
the Roman franchise; it could only make a dediticius or a latinus.
The codex Alaricianus or Breviarium Alaricianum, a code pro-
mulgated a.p. 506 by Alaric II, king of the Visigoths of Spain and
Gaul, contained, besides extracts from the codex Theodosianus
(promulgated 4.p. 436), a selection from the Sententiae of Paulus
and an epitome of these institutes of Gaius. From this epitome it
appears that in the paragraphs now obliterated Gaius proceeded to
explain the modes of private manumission by which a slave became
Latinus Junianus, and instanced writing (per epistolam), attestation
of witnesses (inter amicos), invitation of the slave to sit with other
guests at the table of his master (convivii adhibitione).
$ 22. The lex Junia Norbana, probably passed in the reign of
Tiberius, A.D. 19, fifteen years after the lex Aelia Sentia in the consu-
late of Mareus Junius Silanus and Lucius Norbanus Balbus, defined
and modified the status conferred by such acts of private manumission,
converting Praetoris tuitione liber into ipso jure liber, or possessio
libertatis into genuine libertas; with, however, sundry grievous
stints and deductions. Under this statute the freedman was nomi-
nally assimilated to Latinus coloniarius, the citizen of a Roman colony
in Latium; that is, had a moiety of the private rights composing
civitas Romana or jus Quiritium, possessing commercium without
connubium. As incapable of connubium or civil marriage, the
Latinus was incapable of patria potestas over his children and of
agnatio or civil relationship. Though incapable of civil marriage
he was of course capable of gentile marriage (matrimonium,
uxorem liberorum quaerendorum causa ducere) and of natural rela-
tionship (cognatio), just as an alien (peregrinus), though, by want of
commercium, incapable of dominion ex jure Quiritium, was capable
of bonitary ownership (in bonis habere) under the jus gentium.
1.§§ 13-27.] DE LIBERTINIS. 49
In virtue of commercium, the Latinus Junianus was capable of
Quiritary ownership, of civil acquisition and alienation (usucapio,
mancipatio, in jure cessio), contract (obligatio), and action (condictio,
vindicatio), like a Roman citizen; but in respect of testamentary
succession his rights were very limited. He was said to have
testamentary capacity (testamentifactio), Ulpian, 20, 9; but this
only meant that he could perform the part of witness, or familiae
emptor, or libripens (2 $ 104), i.e. could assist another person to
make a valid will; not that he could take under a will either as
heir or as legatee, or could dispose of his own property by will,
Ulpian, 20, 14. At his death all his property belonged to his
patron, as if it were the peculium of a slave, 3 $ 56. In fact, as
Justinian says: Licet ut liberi vitam suam peragebant, attamen
ipso ultimo spiritu simul animam atque libertatem amittebant,
Inst. 8, 7, 4. ‘Though free in their lifetime, the same moment
that deprived them of life reduced them to the condition of
slaves.’
Although in the person of libertus himself, Latinitas was almost
a mockery, yet it was not so for his posterity; these disabilities
only attached to the original freedman, not to his issue. The son
of the dediticius or Latinus Junianus, though reduced to absolute
penury by the confiscation of the parental property to the patron,
began, and continued, the world with the ordinary capacities, re-
spectively, of peregrinus and Latinus coloniarius, and was under no
legal obligations to the patron of his father.
Long before the time of Gaius, Latinitas or Latium had only a
jaristic, not an ethnographic signification. Cf. §79. Soon after the
social war all Italy received the civitas Romana. Originally Gallia
Cispadana (Southern Lombardy) had civitas Romana, while Gallia
Transpadana (Northern Lombardy) had only Latinitas, but Gallia
Transpadana afterwards obtained civitas. Latinitas was a definite
jaristic conception, and Latin status was conferred as a boon on
many provincial towns and districts that had no connection with
Latium or its races. Vitellius is carped at by Tacitus for his lavish
grants of Latinity (Latium vulgo dilargiri Hist. 3, 55). Hadrian
made many similar grants (Latium multis civitatibus dedit, Spar-
tian, Had. 21), and Vespasian conferred Latin rights on the whole
of Spain, Pliny, Hist. Nat. 8, 4. See $181 Comm.
50
[QvIBVS MODIS LATINI AD CIVITA-
TEM ROMANAM PERVENIANT. |
$ 28. Latini uero multis modis ad
ciuitatem Romanam perueniunt.
§ 29. Statim enim ex lege Aelia
Sentia minores triginta annorum
manumissi et Latini facti si uxores
duxerint nel ciues Romanas uel
Latinas coloniarias uel eiusdem con-
dicionis cuius ef ipsi essent, idque
testati fuerint adhibitis non minus
quam septem testibus ciuibus Ro-
manis puberibus, et filium procrea-
uerint, cum 1s filius anniculus esse
coeperit, datur eis potestas per eam
legem adire praetorem uel in pro-
uinctis praesidem prouinciae, et ad-
probare se ex lege Aelia Sentia
uxorem duxisse et ex ea filium
anniculum habere; et si is apud
quem causa probata est, id ita esse
pronuntiauerit, tunc et ipse Lati-
nus et uxor eius, si et ipsa (eius-
dem condicionis sit, et. filius, st et
ipse) eiusdem condicionis sit, ciues
Romani esse iubentur,
$ 30. Ideo autem in hutus persona
adiecimus * si et ipse eiusdem condi-
cionis sit, quia si uxor Latini ciuis
Romana est, qui ex ea nascitur, ex
nouo senatusconsulto quod auctore
diuo Hadriano factum est, ciuis Ro-
manus nascitur.
$ 31. Hoc tamen ius adipiscendae
ciuitatis Ronianae etiamsi so/i mi-
nores triginta annorum manumissi
et Latini facti ex lege Aelia Sentia
habuerunt, tamen postea senatus-
consulto quod Pegaso et Pusione
consulibus factum est, etiam ma-
DE PERSONIS.
[1. §§ 28-35.
MODES BY WHICH LATIN FREEDMEN
BECOME ROMAN CITIZENS.
§ 28. Latins have many avenues
to the Roman franchise.
§ 29. For instance, the lex Aelia
Sentia enacts that when a slave
below the age of thirty becomes by
manumission & Latin, if he take to
himself as wife a citizen of Rome, or
a Latin colonist, or a freedwoman
of his own condition, and thereof
procure attestation by not less
than seven witnesses, citizens of
Rome above the age of puberty, on
begetting a son who attains the
age of a year, he is entitled to
apply to the praetor, or, if he reside
in & province, to the president of
the province, and to prove that he
has conformed to the requirement
of the lex Aelia Sentia by marrying
a wife, and begetting by her a son
who has completed the first year
of his age: and thereupon if the
magistrate to whom the proof is
submitted pronounce the trath of
the declaration, that Latin and
his wife, if she is of the same
condition, and their son, if he is
of the same condition, are declared
by the statute to be Roman citi-
zens.
§ 30. The reason why I added,
when I mentioned the son, if of the
same condition, was this, that if the
wife of the Latin is a citizen of
Rome,the son, in virtue of the recent
senatusconsult made on the motion
of the late Emperor Hadrian, is a
citizen of Rome from the date of
his birth.
$ 31. This capacity of acquiring
Roman citizenship, though by the
lex Aelia Sentia exclusively granted
to freedmen who only became
Latins in consequence of being
under thirty years of age at the
time of their manumission, by a sub-
1.§§28-35.] Q. M. LATINI AD CIVITATEM R. P. 51
ioribus triginta annorum manu-
missis Latinis factis concessum est.
$ 32. Ceterum etiamsi ante de-
cesserit Latinus, quam anniculi
filii causam probawerit, potest mater
eius causam probare, et sic et ipsa
fiet ciuis Romana, si Latina fuerit
——|— permissum
quibusdam |ipse filius ciuis
Bomanus sit, quia ex ciue Romana
matre natus est, tamen debet causam
probare, ut suus heres petri fiat,
$ 32 a. (quae) uero diximus de
filio annicul(o, eadem e de filia an-
mcula) dicta intellegemus.
$ 32.5. | | lid est
fiunt ciues Romani, si Romae inter
uigiles sex annis militauerint.
postea dicitur factum esse senatus-
consultum, quo data est illis ciuitas
Romana, si triennium militiae ex-
pleuerint.
$ 32c. Item edicto Claudü La-
tini ius Quiritium consecuntur, si
nauem marinam aedificauerint, quae
non minus quam decem milia mo-
diorum frumenti capiat, eaque nauis
uel quae in eius locum substituta
sit, sex annis frumentum Romam
portauerit.
$ 33. Praeterea a Nerone consti-
tutum est, ut si Latinus qui patri-
moniem sestertium CC milium plur-
isue habebit, in urbe Boma domwm
sedificauerit, in quam non minus
quam partem dimidiam patrimonii
sui inpenderit, ius Quiritium con-
sequatur,
sequent senatusconsult, made in the
consulship of Pegasus and Pusio;
was extended to all freedmen who
acquire the status of Latins, even
though thirty years old when manu-
mitted.
$32. If the Latin die before
his son's attaining the age of a
year the mother may prove the
title, and thereupon both she and
her son, if she be a Latin, become
citizens of Rome. And if the mother
fails to prove the title, the tutors
of the son may do so or the son
himself when he has attained the
age of puberty. If the son is a
Roman citizen owing to the fact
of his having been born of a Roman
citizen mother, he must neverthe-
less prove his title in order to
make himself his father’s self suc-
C BBOT.
$ 32 a. What has been said about
a son of a year old, must be under-
stood to be equally applicable to a
daughter of that age.
§ 32 6. Latins acquire the ius
quiritium, i.e. become Roman cit-
izens, if they have served for six
years in the guards at Rome. Asub-
sequent senatusconsultum is said to
have been passed, by which Roman
citizenship was conferred on Latins,
who completed three years active
military service.
$ 32 c. Similarly by an edict of
Claudius Latins acquire the right
of citizenship, if they build a ship
which holds 10,000 modii of corn,
and this ship or one substituted for
it imports corn to Rome for six
years.
§ 33. Nero further enacted that
if a Latin having property worth
200,000 sesterces or more, build
a house at Rome on which he ex-
pends not less than half his pro-
perty, he shall acquire the right
of citizenship,
E 2
52 . DE PERSONIS.
§ 34. Denique Traianus consti-
tuit, ut si Latznys in urbe triennio
pistrinum exercuerit in quo in dies
singulos non minus quam centenos
modios frumenti pinseret, ad ius
Quiritium peruentat.
$ 35. | | |
maiores triginta annorum manu-
missi et Latini facti |
jus Quiritium consequi tri|-
ginta annorum manumittant |
| manumissus uindicta aut
censu aut testamento ciuis
Romanus | libertus fit
iterauerit. ergo si seruus in |bonis
fuis, ex iure Quiritium meus erit,
Latinus quidem a te solo fieri po-
test, iterari autem (manwumissto)
& me, non etiam a te potest, et
eo modo meus libertus fit. sed et
ceteris modis ius Quiritium con-
secutus meus libertus fit. bonorum
autem quae , cum is morietur,
reliquerit, tibi possessio datur, quo-
cumque modo ius Quiritium fuerit
consecutus. quodsi cuius et in
bonis et ex iure Quiritium sit manu-
missus, ab eodem scilicet et Latinus
fieri potest et ius Quiritium con-
gequi. .
[x. $$ 28-35.
$ 34. Lastly, Trajan enacted that
if a Latin carry on the business of
miller in Rome for three years, and
grinds each day not less than a.
hundred measures of wheat, he shall
attain Roman citizenship.
$ 35. Slaves who become Latins
either because they are under thirty
at the time of their manumission,
or having attained that age because
they are informally manumitted,
may acquire Roman citizenship by
re-manumission in one of the three
legal forms, and they are thereby
made freedmen of their re-manu-
mitter. Ifa slave is the bonitary
property of one person and the
quiritary property of another he
can be made a Latin by his boni-
tary owher acting alone, but his
re-manumission must be the act of
his quiritary owner, and whether
he acquires citizenship by re-manu-
mission or in any other way, he is
the freedman of his quiritary owner,
The Praetor, however, invariably
gives the bonitary owner possession
of the inheritance of such freed-
man. A slave in whom his owner
has both bonitary and quiritary
property, if twice manumitted by
his owner, may acquire by the first
manumission the Latin status, and
by the second the Roman franchise.
§ 29. This enactment is stated by Ulpian to belong to the Lex
Junia (Ulp. 3, 3), cf. § 18 Comm.
The decision (sententia) of the judex in a judicium ordinarium
was either condemnatio or absolutio of the defendant. In actions
in which the case was left to the arbitrium of a judex this was
apparently preceded by pronuntiatio, a declaration of the rights
of the parties. This appears from the following, among other
passages: Sed et si fundum vindicem meum esse, tuque confessus
sis, perinde teneberis atque si dominii mei fundum esse pronun-
ciatum esset, Dig. 42, 2, 6, 2. Si quum de hereditate inter me
et te controversia esset, juravero hereditatem meam esse, id con-
sequi debeo quod haberem si secundum me de hereditate pronun-
1.$$28-35.] Q. M. LATINI AD CIVITATEM R. P, 53
tiatum esset, Dig. 12, 2, 10, 8. When the pronuntiatio was for
the plaintiff, if the defendant obeyed the arbitrium or provisional
order of the judex by making restitution, there was no subsequent
condemnatio. In the form of real action, called a praejudicium,
that is, a simple issue of fact, the pronunciatio formed the whole
result of the trial, and was not followed by sententia. Similarly,
when a Latinus laid his claim of Roman franchise before the
praetor under this enactment of the lex Aelia Sentia, the result
of the extraordinaria cognitio of the praetor, as appears by this
paragraph, was merely & pronuntiatio without any subsequent
decretum.
$ 81. Pegasus and. Pusius were consuls in the reign of Vespasian.
$32 6-§ 85. Cf. Ulpian, Tit. 8. Besides the method provided
by the lex Aelia Sentia, Latinus or Latina might attain the Roman
franchise under the following conditions :—
I. By erroris causae probatio, i.e. if, intending to comply with
the statute, Latinus marry Peregrina, believing her to be Latina,
$70; or Latina marry Peregrinus, believing him to be Latinus,
$ 69; or i£ Civis, believing himself to be Latinus, marry Latina,
$ 71; orif Civis marry Latina, believing her to be Civis Romana,
§ 67; on proof of this mistake, the Latinus or Latina and their
offspring acquire the franchise,
2. By magistracy in a Latin colony Latinus becomes Civis Ro-
manus, § 95.
3. By remanumission (iteratio) i.e. after acquiring Latinity by
one of the private modes of manumission, a subsequent manumission
by one of the public modes, vindicta, censu, or testamento, converted
Latinus into Civis, $ 35, and Ulp. 8, 4.
4. By six years’ service in the Roman guards (si inter vigiles
Komae sex annos militaverit, Ulp. 3, 5). A decree of the senate
made three years’ service a sufficient title, $ 325. Compare the
provision of 18 Geo. II, c. 8, whereby every foreign seaman who
in time of war serves two years on board an English ship, and all
foreign protestante serving two years in a military capacity in
the Ameriean colonies, are naturalized.
5. By building a house in Rome (aedificio, Ulp. 3, 1), $ 33.
6. By building a ship of 10,000 modii and importing corn to Rome
for six years, Ulp. 8, 6. Compare the English law by which all
foreign protestants employed three years in the whale fishery are
naturalized, except as to capacity for public office, $ 82 c.
54 DE PERSONIS. [1. $$ 36-41.
7. By building a mill and bakehouse for the supply of Rome
(pistrino, Ulp. 8, 1), $ 84.
8. By bearing three children, Ulp. 8, 1.
9. By imperial grant (beneficio principali, Ulp. 8,2). This and
the previous mode of acquiring citizenship were perhaps men-
tioned by Gaius at the beginning of $ 35.
Civitas Romana and Jus Quiritium are synonymous, but the
former term was always used when the franchise was conferred on a
Peregrinus, the latter generally when it was conferred on Latinus
Junianus: e.g. Quare rogo, des ei civitatem, est enim peregrinae
conditionis, manumissus a peregrina. . . . Idem rogo, des jus
Quiritium libertis Antoniae Maximillae . . . quod a te, petente
patrona, peto, Pliny to Trajan, 10, 4. Ago gratias, domine,
quod et jus Quiritium libertis necessariae mihi feminae et civi-
tatem Romanam Harpocrati, iatraliptae meo, sine mora indul-
sisti, ibid. 10,5. Civitas Romana, however, was sometimes used in
speaking of the enfranchisement of Latinus, as we see from $ 28.
QUI, QUIBUS EX CAUSIS, MANUMITTERE NON POSSINT.
$ 36. | Non tamen cuicumque «o-
lenti manumittere licet.
$ 37. nam is qui | in. fraudem
creditorum uel in fraudem patroni
manumittit, nihil agit, quia lex
Aelia Sentia impedit libertatem.
$ 38. 7tem eadem lege minori Xx
annorum domino non aliter manu-
mittere permittitur, quam [si] uin-
dieta apud consilium iusta causa
manumissionis adprobata [fuerit].
$ 39. Iustae autem caussae manu-
missionis sunt ueluti si quis pa-
trem aut matrem aut paedagogum
aut conlactaneum manumittat. sed
et illae causae quas superius in
seruo minore XXX annorum ex-
posuimus, ad hunc quoque casum
de quo loquimur, adferri possunt.
item ex diuerso hae causae quas
in minore Xx annorum domino ret-
$ 36. Not every owner who is so
disposed is capable of manumission.
$ 37. An ownerwho would defraud
his creditors or his own patron by
an intended manumission, attempts
in vain to manumit, because the lex
Aelia Sentia defeats the manumis-
Bion.
$ 38. Again, by a disposition of
the same statute, before attaining
twenty years of age, the only pro-
cess by which an owner can manu-
mit, is fictitious vindication preceded
by proof of adequate motive before
the council of assessors.
$ 39. It is an adequate motive of
manumission, if the father, for in-
stance, or mother, or governor, or
foster-brother of the manumitter,
is the slave to be manumitted. In
addition to these, the motives re-
cently specified respecting the slave
under thirty years of age, may be
alleged when the manumitting
owner is under twenty; and, re-
1. $$ 42-47.]
tulimus, porrigi possunt et ad ser-
uum minorem XXX annorum.
$ 40. Cum ergo certus modus
manumittendi minoribus XX anno-
rum dominis per legem Aeliam Sen-
tiam eonstitutus sit, euenit ut qui
XiHi annos aetatis expleuerit, licet
testamentum facere possit et in eo
heredem sibi iustituere legataque
relinquere possit, tamen si adhuc
minor sit annorum Xx, libertatem
seruo dare non possit.
$ 41. Et quamuis Latinum facere
uelit minor XX annorum dominus,
tamen nihilo minus debet apud con-
silium causam probare, et ita postea
inter amicos manumittere.
DE LEGE FUFIA CANINIA. 55
ciprocally, the motives valid when
the manumitting owner is under
twenty, are admissible when the
manumitted slave is under thirty.
§ 40. As, then, the lex Aelia Sen-
tia prescribes a certain mode of
manumiesion for owners under the
age of twenty, it follows that,
though a person who has completed
his fourteenth year is competent
to make a will, and therein to in-
stitute an heir and leave bequests ;
yet, if he has not attained the age
of twenty, he cannot therein en-
franchise a slave.
$ 41. And even to confer the
Latin status, if he is under the age
of twenty, the owner must satisfy
the council of the adequacy of his
motive before .he manumits the
slave in the presence of witnesses.
§ 41. Justinian, having first reduced the age from 20 to 17, or
the beginning of the eighteenth year (Inst. 1, 6, 7), finally per-
mitted minors to enfranchise by will ae soon as they could make
a valid will, i.e. at the age of 14 (Novella, 119, 2). He mentions
that the lowest class of freedmen (dediticia libertas) had long been
obsolete, and formally abolished the second class (latina libertas),
converting most of the modes of making Latinus into modes
of making Civis Romanus, and declaring the rest inoperative,
Cod. 7, 6.
DE LEGE FUFIA OANINIA,
$ 42. Praeterea lege Fufia Ca-
ninia certus modus constitutus est
in seruis testamento manumittendis.
$ 43. nam ei qui pluresquam duos
neque plures quam decem seruos
habebit, usque ad partem dimidiam
eius numeri manumittere permit-
titur. ei uero qui plures quam X
neque plures quam XXX seruos habe-
bit, usque ad tertiam partem eius
numeri manumittere permittitur. a£
ei qui plures quam XXX, neque
§ 42. Moreover, by the lex Fufia
Cuninia a certain limit is fixed to
the number of slaves who can re-
ceive testamentary manumission.
§ 43. An owner who has more
than two slaves and not more than
ten is allowed to manumit as many
as half that number; he who has
more than ten and not more than
thirty is allowed to manumit a
third of that number; he who
has more than thirty and not more
than a hundred is allowed to manu-
56
plures quam centum habebit, usque
ad partem quartam potestas manu-
mittendi datur. nouissime ei qui
plures quam C nec plures quam 5D
habebit, non plures manumittere
permittitur quam quintam par-
tem; neque plures ( )tur:
sed praescribit lex, ne cui plures
manumittere liceat quam &. quod-
si quis unum seruum omnino aut
duos habet, ad hanc legem non per-
tinet, et ideo liberam habet potes-
tatem manumittendi.
. $44. Ac ne ad eos quidem om-
nino haec lex pertinet, qui sine tes-
tamento manumittunt. itaque licet
tis, qui uindicta aut censu aut inter
amicos manumittunt, totam familiam
liberare, scilicet si alia cuusa non
inpediat libertatem.
$ 45. Sed quod de numero ser-
uorum testamento manumittendo-
vum diximus, ita intellegemus, ne
umquam ex eo numero, ex quo di-
midia aut tertia aut quarta aut
quinta pars liberari potest, pauciores
manumittere liceat, quam ex ante-
cedenti numero licuit. et hoc ipsa
lege prouisum est; erat enim sane
absurdum, ut X seruorum domino
quinque liberare liceret, quia usque
ad dimidiam partem eius numeri
manumittere ei conceditur, Xii (au-
tem) seruos habenti non plures li-
ceret manum?f£tere quam III; ttem
eis qui plures quam X neque
(24 wersus in C legi nequeunt.)
$46. Nam et si testamento scrip-
tis in orbem seruis libertas data sit,
quia nullus ordo manumissionis in-
uenitur, nulli liberi erunt, quia lex
Fufia Caninia quae in fraudem eius
facta sint rescindit. sunt etiam
Bpecialia senatusconsulta, quibus
DE PERSONIS.
[1. $$ 42-47.
mit a fourth; lastly, he who has
more than a hundred and not more
than five hundred is allowed to
manumit a fifth: and, however
many a man possesses, he is never
allowed to manumit more than this
number, for the law prescribes that
no one shall manumit more than a
hundred. On the other hand, if a
man has only one or only two, the
law is not applicable, and the owner
has unrestricted power of manu-
mission.
§ 44. Nor does the statute apply
to any but testamentary manumis-
sion, 80 that by means of fictitious
vindication or inscription on the
censor's register, or by attestation
of friends, a proprietor of slaves
may manumit his whole household,
provided that there is no other let or
hindrance to impede their manu-
mission.
§ 45. But the limitation of the
number of slaves that a testator 1s
allowed to manumit is subject to
the following proviso: that out of
each of the numbers from which a
half, a third, a fourth, a fifth, may
respectively be enfranchised, as
many may always be enfranchised
as out of the preceding number, a
proviso expressed in the statute;
indeed, it would have been irra-
tional if the owner of ten slaves
had been entitled to enfranchise
five, and the owner of twelve could
only manumit four; similarly in
the case of one who had more than
ten and not more than thirty it
might have been possible to manu-
mit a greater number of slaves than
in the case of one who had more
than thirty.
§ 46. If a testator manumits in
excess of the permitted number, and
arranges their names in a circle, as
no order of manumission can be dis-
covered, none of them can obtain
their freedom, as both the lex Fufia
Caninia itself and certain subse-
§ 1. 48—54.]
rescissa sunt ea quae in fraudem
eius legis excogitata sunt.
§ 47. In summa sciendum est,
(cum) lege Aelia Sentia cautum
sit, «t creditorum fraudandorum
causa manumissi liberi non fiant,
hoc etiam ad peregrinos pertinere
(senatus ita censuit ex auctoritate
Hadriani) cetera uero iura eius
legis ad peregrinos non pertinere.
DE POTESTATE DOMINICA,
57
quent decrees of the senate declare
null and void all dispositions con-
trived for the purpose of eluding
the statute,
$ 47. Finally, it is to be noted
that the provision in the lex Aelia
Sentia making manumissions in
fraud of creditors inoperative, war
extended to aliens by a decree of
the senate passed on the proposition
of the Emperor Hadrian; whereas
the remaining dispositions of that
statute are inapplicable to aliens.
§ 45. The subject of what is omitted in the MS. may be
gathered from Epit. 1, 2, 2-4: ‘Nam si aliquis testamento plures
manumittere voluerit, quam quot continet numerus supra scriptus;
ordo servandus est, ut illis tantum libertas valeat, qui prius manu-
missi sunt, usque ad illum numerum, quem explanatio continet
superius comprehensa ; qui vero postea supra constitutum numerum
manumissi leguntur, in servitute eos certum est permanere.
Quodsi non nominatim servi vel ancillae in testamento manu-
mittantur, sed confuse omnes servos suos vel ancillas is qui testa-
mentum facit, liberos faeere voluerit, nulli penitus firma esse
jubetur hoe ordine data libertas, sed omnes in servili condicione,
qui hoc ordine manumissi sunt, permanebunt. Nam et si ita in
testamento servorum manumissio adscripta fuerit, id est in circulo,
uf qui prior, qui posterior nominatus sit, non possit agnosci, nulli
ex his libertatem valere manifestum est, si agnosci non potest qui
prior, qui posterior fuerit manumissus. (§ 3.) Nam si aliquis in
aegritudine constitutus in fraudem hujus legis facere noluerit tes-
tamentum, sed epistulis aut quibuscumque alis rebus servis suis
pluribus quam per testamentum licet conferre voluerit libertates,
et sub tempore mortis hoe fecerit, hi qui prius manumissi fuerint,
usque ad numerum superius constitutum liberi erunt, qui vero post
statutum numerum manumissi fuerint, servi sine dubio permane-
bunt. (§ 4.) Nam si incolumis quoscunque diverso tempore manu-
misit, inter eos qui per testamentum manumissi sunt nullatenus
computentur.'
$ 47. Thelex Fufia Caninia, passed under Augustus, was generally
called the lex Furia Caninia before the manuscript of Gaius was
reexamined by Studemund; it was abrogated by Justinian. See
Inst. 1, 7.
58
DE PERSONIS.
[1. 85. 48-54.
DE HIS QUI 8UI VEL ALIENI IURIS SINT.
$ 48. Sequitur de iure persona-
rum alia diuisio. nam quaedam per-
sonae sui iuris sunt, quaedam alieno
iuri subiectae sunt.
$ 49. Rursus earum personarum
quae alieno iuri subiectae sunt,
aliae in potestate, aliae in manu,
alice in mancipio sunt.
$ 50. Videamus nunc de his quae
alieno iuri subiectaesint ; (nam) si
cognouerimus quae istae personae
sint, simul intellegemus quae sui
luris sint.
§ 51. Ac prius dispiciamus de iis
qui in aliena potestate sunt.
$ 52. In potestate itaque sunt
serui dominorum. quae quidem po-
testas iuris gentium est; nam apud
omnes peraeque gentes animaduer-
tere possumus dominis in seruos
uitae necisque potestatem esse; et
quodcumque per seruum adquiritur,
id domino adquiritur.
$ 53. sed hoc tempore neque ci-
uibus Romanis, nec ullis aliis ho-
minibus qui sub imperio populi
Romani sunt, licet supra modum
et sine causa in seruos suos sae-
uire ; nam ex constitutione impera-
toris Ántonini qui sine causa ser-
uum suum occiderit, non minus
teneri iubetur, quam qui alienum
seruum occiderit, sed et maior
quoque asperitas dominorum per
eiusdem principis constitutionem
coercetur; nam consultus a qui-
busdam praesidibus prouinciarum
de his seruis qui ad fana deorum
uel ad statuas principum confu-
giunt, praecepit, ut si intolerabilis
uideatur dominorum saeuitia, co-
gantur seruos suos uendere. et
utrumque recte fit; male enim
nostro iure uti non debemus; qua
ratione et prodigis interdicitur bo-
norum suorum administratio.
§ 48. Another division in the law
of Persons classifies men as either
dependent or independent.
$ 49. Those who are dependent
or subject to a superior, are either
in his power, in his hand, or in his
mancipation.
$ 50. Let us first explain what
persous are dependent on a superior,
and then we shall know what per-
sons are independent.
§ 51. Of persons subject to a
superior, let us first examine who
are in his power.
§ 52. Slaves are in the power of
their proprietors, a power recog-
nized by Gentile law, for all nations
present the spectacle of masters in-
vested with power of life and death
over slaves ; and by the Roman law
the owner is entitled to everything
acquired by the slave.
§ 53. But in the present day nei-
ther citizens of Rome, nor any other
persons under the empire of the
people of Rome, are permitted to in-
dulge in excessive orcauseless harsh-
ness towards their slaves. By a
constitution of the Emperor Pius
Antoninus, a man who kills a slave
of whom he is owner, is as liable to
punishment as a man who kills a
slave of whom he is not owner: and
inordinate cruelty on the part of
owners is checked by another con-
stitution whereby the same emperor,
in answer to enquiries from pre-
sidents of provinces concerning
slaves who take refuge at temples
of the gods, or statues of the em-
peror, commanded that on proof
of intolerable cruelty a proprietor
should be compelled to sell his
slaves: and both ordinances are
just, for it is proper that the abuse
of a lawful right should be re-
1. § 48-54.] DE POTESTATE DOMINICA. 59
strained, a principle recognized in
the interdiction of prodigals from
the administration of their fortune.
$54. Ceterum cum apud ciues $ 54. Citizens of Rome having
Romanos duplex sit dominium two kinds of dominion, bonitary
(nam uel in bonis uel ex iure Qui- and quiritary, or a union of boni-
ritium uel ex utroque iure cuiusque tary and quiritary dominion, a slave
seruus esse intellegitur), ita demum is in the power of an owner who
seruum in potestate domini esse has bonitary dominion over him,
dicemus, si in bonis eius sit, etiamsi even unaccompanied with quiritary
simul ex iure Quiritium eiusdem dominion; if an owner has only
non sit; nam qui nudum ius Quiri- naked quiritary dominion he is not
tium in seruo habet, is potestatem deemed to have the slave in his
habere non intellegitur. power.
§§ 52,58. The condition of the slave was at its worst m the golden
period of Roman history. As soon as Rome found her power irre-
sistible she proceeded to conquer the world, and each stage of conquest
was the reduction of a vast portion of mankind to slavery. 30,000
Tarentines were sent as slaves to Rome by Fabius Cunctator, the
eaptor of Tarentam ; 150,000 Epirote by Paulus Aemilius, the sub-
Jagator of Epirus. Julius Caesar retrieved his shattered fortunes
by enormous operations in the slave market during his campaign
in Gaul. Thus, unfortunately for the slave, the slave market was
continually glutted and slave life was cheap. The condition of the
slave gradually but slowly improved under the emperors. <A lex
Petronia of uncertain date required a slave-owner to obtain the
permission of a magistrate before exposing a slave to be torn to
pieces by wild beasts, and only allowed such permission to be
granted for some offence committed by the slave, Dig. 48, 8, 11, 2.
Claudius prohibited killing slaves who fell sick, and enacted that
the exposure of a slave to perish in his sickness should operate as
a manumission, conferring Latinitas, Sueton. Claud. 25, Cod. 7.6.8.
Hadrian deprived proprietors of the power of putting slaves to
death without a judicial sentence, Spartian, Had. 18. Antoninus
Pius declared a proprietor who killed a slave to be guilty of murder,
and subject to the penalty of the lex Cornelia de sicariis. We read
In Justinian’s Digest: Qui hominem occiderit punitur non habita
differentia cujus conditionis hominem interemit, Dig. 48, 8, 12.
‘Homicide is punished without regard to the status of the person
killed.’ The punishment was generally capital, Dig. 48, 8, 8, 5.
‘The law of Comelius Syll touching assassins and poisoners,
punishes with transportation to an island and forfeiture of all pro
60 ! DE PERSONIS. [1. § 55:
perty. But at present the punishment is usually capital, unless
the criminal is of exalted station ; humbler criminals are thrown to
wild beasts, only criminals of higher rank are transported.’ Hadrian
prohibited the castration of a slave, consenting or not consent-
ing, under penalty of death, Dig. 48, 8, 4,2. Antoninus Pius also
protected slaves against cruelty and personal violation, Dig. 1, 6, 2.
The Digest, 1, 6, 1, quoting § 53, after sine causa, interpolates,
legibus cognita, thus placing slaves under the protection of
the law, and almost recognizing in slaves some of the primordial
rights of humanity, except that, as already observed, obligation
does not necessarily imply a correlative right. Roman law to the
end, unlike other legislations which have recognized forms of
slavery, refused to admit any rights in the slave. Florentinus,
however, not long after the time of Gaius, admitted that slavery
was a violation of the law of nature. Servitus est constitutio juris
gentium qua quis domino alieno contra naturam subicitur, Dig. 1,
5,4. ‘Slavery is an institution of Gentile law, making one man
the property of another, in contravention of Natural law. Ulpian
says the same: Quod attinet ad jus civile, servi pro nullis habentur,
non tamen et jure naturali; quia quod ad jus naturale attinet, omnes
homines aequales sunt, Dig. 50, 17, 32. ‘Before the Civil law a
slave is nothing, but not before the Naturallaw; for in the eye of
Natural law all men are equal.’ The belief in a Natural law, more
venerable than any Civil law, was very prevalent in the ancient
world, and one of the principal contributions of Philosophy to
civilization.
The absolute privation of all rights was sometimes expressed by
saying that a slave has no persona, caput, or status: e.g. Servos
quasi nec personam habentes, Nov. Theod. 17. ‘Slaves being re-
garded as impersonal men. Servus manumissus capite non minui-
tur quia nullum caput habet, Inst. l, 16, 4. ‘A slave by manu-
mission loses no rights, having none to lose. Cum servus manu-
mittitur, quia servile caput nullum jus habet, ideo nec minui potest,
eo die enim incipit statum habere, Dig. 4, 5, 4. ‘A slave who is
manumitted, having no rights, cannot lose any, for all his righte
date from the day of his manumission. The word ‘persona,’ how-
ever, is sometimes applied to slaves: e.g. in personam servilem
nulla cadit obligatio, Dig. 50, 17,22, * A slave can owe no obliga-
tion. So is caput in one of the above quoted passages, § 54.
Cf. $ 58 and 2 $ 40.
1.§ 55. ]
DE PATRIA
§ 55. Item in potestate nostra
sunt liberi nostri quoe iustis nuptiis
procreauimus. quod ius proprium
ciuium Romanorum est; fere enim
nulli alii sunt homines qui talem in
filios suos habent potestatem qualem
nos habemus, idque diuus Hal|dri-
anus edicto, quod proposuit de his
qui sibi liberisque suis ab eo ciui-
tatem Romanam petebant, significa-
uit. nec me praeterit Galatarum
DE PATRIA POTESTATE.
61
POTESTATE.
$ 55. Again, a man has power
over his own children begotten in
civil wedlock, a right peculiar to
citizens of Rome, for there is scarcely
any other nation where fathers are
invested with such power over their
children as at Rome; and this the
late Emperor Hadrian declared in
the edict he published respecting
certain petitioners for a grant of
the Roman franchise to themselves
gentem credere in potestate pa-
and their children; though I am
rentum liberos esse,
aware that among the Galatians
parents are invested with power
over their children.
§ 55. The most peculiar portion of the Roman law of status is
that which refers to patria potestas, or the relation of paterfamilias
to filiusfamilias. Patria potestas was founded on consuetudinary
law (quum jus potestatis moribus sit receptum, Dig. 1, 6, 8),
and may be considered under two heads, (1) as regarding the
person of the son, (2) as regarding proprietary rights acquirable
by the son.
I. Over the person of the child the father had originally a power
of life and death. Patribus jus vitae in liberos necisque potestas
olim erat permissa, Cod. 8, 47, 10. So the lex Pompeia de parri-
eidiis, enumerating the persons who could be guilty of parricide, or
the murder of a blood relation, omits the father, Dig. 48, 9. Com-
pere also the formula of Adrogatio, § 98, commentary. But in
later times this power was withdrawn. Hadrian condemned to
deportation à father who in the hunting-field killed his son who
had committed adultery with his stepmother, Dig. 48, 9, 5. Con-
stantine, A.D. 319, included killing by a father under the crime of
parricide, Cod. 9, 17. Fathers retained the power of moderate
chastisement, but severe punishment could only be inflicted by the
magistrate, Cod. 8, 47, 3. Si atrocitas facti jus domesticae emen-
dationis excedat, placet enormis delicti reos dedi judicum notioni,
Cod. 9, 15. Trajan compelled a father to emancipate a son whom
he treated with inhumanity, Dig. 37, 12, 5. It was originally at
the option of the parent whether he would rear an infant or expose
it to perish, but in later times exposition was unlawful, Valentinian,
Valens, and Gratian, A.D. 874, Cod. 8, 52, 2.
62 ' DE PERSONIS, [x.§ 55.
Originally also parents had the power of selling (mancipandi)
their children into bondage, thus producing a capitis minutio, or
degradation of status. In fact, the patriarchs of the Roman race
were slave-dealers who, like some savage tribes in Africa and else-
where, trafficked in the bodies of their own children. We must note,
however, that the bondage into which a Roman father sold his
children was, at least at the time at which this institution is known
to us, a limited degree of subjection: the mancipation could only
be made to another Roman citizen, and the bondsman continued to
be liber and civis, But this power also was withdrawn in more
civilized times. A law of Diocletian and Maximian declares the
sale, donation, pledging of children to be unlawful, Cod. 4, 48, 1.
A rescript of one of the Antonines commences in the following
terms, Cod. 7, 16, 1: ‘You are guilty, by your own admission, of
an unlawful and disgraceful act, as you state that you sold your
freeborn children? Justinian increased the penalties of the law
against creditors who took possession of the freeborn child of a
debtor as a security for a debt. He enacted that the creditor
should forfeit the debt, should pay an equal sum to the child or
parent, and in addition should undergo corporal punishment, No-
vella, 184, 7. In the time of Gaius, the only genuine sale of a
child into bondage was in the case of noxal surrender, i.e. when a
father sued for the trespass of a child, in lieu of damages, surren-
dered his delinquent son or daughter as a bondsman (mancipium) to
the plaintiff, § 140. . The sale of the child in adoption and emanci-
pation was merely fictitious ; even noxal surrender was practically
obsolete in the time of Justinian, by whom it was formally abolished,
Inst. 4, 8, 7. Constantine, however, in cases of extreme poverty
permitted parents to sell their children immediately after. birth
(sanguinolentos), and this constitution was retained in the code of
Justinian, Cod. 4, 43, 2.
2. In respect of property, filiusfamilias was capable of obligation
but not of right; he could be debtor but not creditor; in any
transaction where an independent person (sui juris) would have
been creditor, filiusfamilias was merely a conduit-pipe through
which a right vested in his father as creditor or proprietor. Even
in domestie relations filiusfamilias could only figure as inferior, not
as superior; he owed obedience, but could not exercise command
(jus, in the special sense which it has in the phrases, sui juris, alieni
juris); he could only be an instrument by which his father acquired
1.555] DE PATRIA POTESTATE. 63
a right of command. Thus, filiusfamilias had commercium, and
could take by mancipatio, but the property he thus took vested in
his father; he could make a valid contract, but the contractual
right vested in his father; he had testamentifactio, that is, he could
be witness, libripens, familiae emptor, but he could not make a will,
for he had no property to leave; and if he took under a will as
legatee or heir, the legacy or succession vested in his father: cf. 2,
87,8, 163. He had the other element of civitas, connubium ; that
is, he could contract a civil marriage and beget civil children; but
the patria potestas over these children vested not in the father but
m the grandfather, and if the marriage was accompanied with
power of hand (manus), marital power over the wife, this vested
not in the husband but in the husband's father. Any property
which the son was allowed by his father to manage was called his
peculium, i.e. was held on the same terms as property which a slave
administered by permission of his proprietor. In respect of debts
which he incurred, the son did not act as conduit-pipe, but (except
for a loan of money, which the Sc. Macedonianum made irrecover-
able) was liable in his own person, Dig. 44, 7, 39. ‘A son under
power incurs obligation by the same titles, and may be sued on the
same grounds of action as an independent person. The same rule
applied to the son as to the slave: Melior conditio nostra per servos
fieri potest, deterior fieri non potest, Dig. 50,17, 138. ‘The melio-
ration of his proprietor's condition is in the power of a slave, but
not the deterioration.
In his political functions (munus publicum), filiusfamilias was
entirely beyond the sphere of patria potestas. Quod ad jus publicum
attinet non sequitur jus potestatis, Dig. 86, 1, 14, 1. ‘The magis-
terial power of a filiusfamilias is unaffected by patria potestas.'
Thus, a son could act as praetor, ibid., or as judex, Dig. 5, 1, 17, in
a suit to which his father was a party. He could even preside as
magistrate over his own adoption or emancipation ; Si consul vel
praeses filiusfamilias sit, posse eum apud semetipsum vel emanci-
pari vel in adoptionem dari constat, Dig. 1, 7, 3, (which makes it
doubtful how far political functions were suspended even by the
state of mancipium or bondage) He could also be appointed
guardian (tutor), for guardianship (tutela) was held to be a publie
office, Dig. 1, 6, 9. ‘A filiusfamilias in his public relations is
deemed independent, for instance, as magistrate or as guardian.
The above-stated incapacities of filiusfamilias were subject, how-
64 | DE PERSONIS. [1.§55.
ever, to certain exceptions and modifications, which may now be
briefly considered.
a. In certain cases filiusfamilias had an anomalous right of suing
in his own name (suo nomine) i.e. not merely as procurator or
attorney of his father, and even in opposition to his father's wishes,
Dig. 44, 7, 9. ‘A filiusfamilias can only sue in his own name for
outrage, by interdict for violent or clandestine disturbance, for
deposit, for loan, according to Julian. These suits, which, in spite
of the statement in the text, were not the only, though perhaps the
oldest, actions maintainable by & person under power, deserve a
brief explanation. Without the right to - Honour, one of the
primordial rights of humanity, a man is scarcely a freeman, and,
accordingly, this right vests definitively in filiusfamilias, and does
not again pass out of him to vest in his father. Any dishonouring
outrage, therefore, gave filiusfamilias a right of bringing a civil
action, called actio injuriarum, in his own name, though the pater-
familias as a rule maintained the action both on his own account
and that of his son; if, however, he was unable to do so, or his
character was dubious, the son could proceed by himself (cf. 8, 221,
and Dig. 47, 10, 17, § 10, etc.), although any pecuniary damages
that he thereby recovered, being in the nature of property, were
recovered for his father. 'The son under power was recognized,
then, as invested with a vindictive right, though not with a pro-
prietary right. The actio injuriarum was an action in bonum et
sequum concepta (compare Dig. 47, 10, 11, 1, and Dig. 44, 7, 34, pr.),
that is, the terms of the formula (conceptio) directed the judex to
assess the damages not on any principle of civil law, but by his
own sense of natural equity (aequum et bonum), and this form may
have helped to make the action maintainable by one who on the
principles of civil law was incompetent to sue. The interdict quod
vi aut clam was maintainable by filiusfamilias on the same principle
as the actio injuriarum, being a means of vindicating a dishonouring
outrage inflicted on filiusfamilias by some violent disturbance of real
property in defiance of his prohibitio or summons to stay operations
and let the matter abide the result of a judicial trial. On the
same principle a filiusfamilias disinherited or passed over in the
will of his mother or maternal grandfather, as such disinheritance
or pretermission was an implied imputation of turpitude or un-
worthiness and therefore dishonouring, might without the consent
of his father (Dig. 5, 2, 22, pr.) vindicate his honour by impeaching
r.$55.] DE PATRIA POTESTATE. 66
the will of inofficiositas (immorality, or want of natural affection),
although such querela inofficiosi testamenti, being in another point
of view an hereditatis petitio or real action, was not properly
maintainable. by a filiusfamilias. If the plaintiff filiusfamilias
could show that the disinheritance or omission was not due to his
own demerite, he invalidated the will by a fictitious presumption
of the testator’s lunacy and made the testator intestate; and thus
filiusfamilias vindicated his own character, but whatever share he
recovered in the intestate succession vested in his father.
- The right of filiusfamilias to sue by actio commodati or depositi
was founded on a different principle. Suppose that filiusfamilias -
had borrowed or hired a thing that he afterwards lent or deposited ;
his father, not being responsible for his son’s debte, would not be
interested in the recovery of the thing, and therefore was not
entitled to sue the depositary or borrower: the son, however, would
be answerable to the original lender or letter, and accordingly was
allowed to sue in his own name. To avoid, however, contravening
the civil law by affirming a proprietary right vested in a filiusfami-
lias, he did not sue by a formula in jus concepta, i.e. of the form, si
paret oportere, ‘if the plaintiff establish a right,’ but by a formula
in factum, of the form, si paret factum esse, ‘if the plaintiff establish
a fact. It is remarkable that Gaius instances precisely the actio
commodati and the actio depositi as having two forms, one in
jus and another in factum (4$ 47); and we may conjecture that the
latter was invented to be used under these very circumstances by
filiusfamilias.
b. The latter periods of Roman law present a gradual emanci-
pation of filiusfamilias by successive inventions of new kinds of
peculium. As early as the time of Augustus the earnings of a
filiusfamilias in military service were called castrense peculium and
belonged to him in absolute proprietorship, Filiifamilias in castrensi
peculio vice patrumfamiliarum funguntur, Dig. 4, 6, 2. ‘A filius-
familias in respect of his military acquisitions has the right of a
paterfamilias. Subsequently the earnings of filiifamilias in the
civil service of the State, in holy orders, in the liberal professions,
were assimilated to their earnings in the army, under the name of
peculium quasi castrense. Further, whatever came to the son from
his mother or from the maternal line, or from any source but the
paternal estate, was called peculium adventicium, and in this the
father had only a usufruct or life estate, while the son had the
F
66 DE PERSONIS. [1.85 56-64.
reversion in fee (proprietas). Only such peculium as was derived
from the paternal estate (ex re patris) continued, under the name of
peculium profecticium, subject to the old rules and belonged in
absolute property to the father.
Cf. 2 $ 87 comm, Inst. 2, 9,
6 1. 11, § 6. 12, pr. 3, 10, $ 2. 28 pr.
The Gallic race, of which the Galatians were a branch, are men-
tioned by Caesar as having the institution of patria potestas: Vin
in uxores, sicuti in liberos, vitae necisque habent potestatem, De
Bello Gall. .6, 19.
death over wives and children.’
“Husbands and fathers have power of life and
St. Paul in his Epistle to the
-Galatians alludes to the peculiarity of their law: ‘The heir, as long
as he is a child, differeth nothing from a servant, though he be lord
ef all;’ 4, 1.
DE NUPTIIS.
$ 56. | Itaque liberos suos in po-
testate habent ciues Romani,| si ciues
Romanas uxores duxerint, ue] etiam
Latinas peregrinasue cum quibus
conubium habeant; cum enim conu-.
bium id efficiat, ut liberi patris con-
dicionem sequantur, euenit ut non
(solun) ciues Romani fiant, sed
etiam in potestate patris sint.
$ 57. Unde ef ueteranis quibus-
dam concedi solet principalibus
constitutionibus conubium cum his
Latinis peregrinisue quas primas
post missionem uxores duxerint;
et qui ex eo matrimonio nascuntur,
et ciues Romani et in potestate
parentum fiunt.
$58. | Non tamen omnes nobis
uxores ducere licet ; | nam a quar-
undam nuptiis abstinere debemus.
$ 59. Inter eas enim personas
quae parentum liberorumue locum
inter se optinent, nuptiae contrahi
non possunt, nec inter eas conubium
est, ueluti inter patrem et filiam,
uel inter matrem et filium, uel inter
auum et neptem; et si tales per-
sonae inter se coierint, nefarias et
incestas nuptias contraxisse dicun-
$ 56. A Roman citizen contracts
civil wedlock and begets children
subject to his power when he takes
to wife a citizen of Rome or a Latin
or alien with whom a Roman has
capacity of civil wedlock ; for as
civil wedlock has the effect of giving
to the children the paternal con-
dition, they become by birth not
only citizens of Rome, but also sub-
ject to the power of the father.
§ 57. And for this purpose vete-
rans often obtain by imperial con-
stitution a power of civil wedlock
with the first Latin or alien woman
they take to wife after their dis-
charge from service, and the chil-
dren of such marriages are born
citizens of Rome and subject to
paternal power.
§ 58. But it is not any woman
that can be taken to wife, for some
marriages are prohibited.
§ 59. Persons related as ascend-
ent and descendent are incapable of
lawful marriage or civil wedlock,
father and daughter, for instance,
mother and son, grandfather and
granddaughter: and if such rela-
tions unite, their unions are called
incestuous and nefarious ; and so
absolute is the rule that merely
1. $$ 56-64. |
tur. et haec adeo ita sunt, ut
quamuis per adoptionem parentum
liberorumue loco sibi esse coeperint,
non possint inter se matrimonio
coniungi, in tantum, ut etiam dis-
soluta adoptione idem iuris maneat ;
itaque eam quae mihi per adoptio-
nem filiae aw neptis loco esse
coeperit, non potero «xorem ducere,
quamuis eam emancipauerim.
$ 60. Inter ea3 quoque personas
quae ex transuerso gradu cognatione
iunguntur, est quaedam similis
obseruatio, sed non tanta.
$ 61. Sane inter fratrem et soro-
rem prohibitae sunt nuptiae, siue
eodem petre eademque matre nati
fuerint, siue alterutro eorum ; sed
si qua per adoptionem soror mihi
ease coeperit, quamdiu quidem con-
stat adoptio, sane inter me et eam
nuptiae non possunt consistere;
cum uero per emancipationem ad-
optio dissoluta sit, potero eam
uxorem ducere; sed et si ego eman-
cipatus fuero, nihil inpedimento
erit nuptiis.
$ 62. Fratris filiam uxorem du-
eere licet; idque primum in usum
uenit, cum diuus Claudius Ágrippi-
nam fratris sui filiam uxorem dux-
isset; sororis uero filiam uxorem
ducere non licet. et haec ita princi-
palibus conatitutionibus siguifican-
tar. Item amitam et materteram
uxorem ducere non licet.
$ 63. Item eam quae mihi quon-
dam socrus aut nurus aut priuigna
aut nouerca fuit, ideo autem dixi-
mus ‘quondam, quia si adhuc con-
stant eae nuptiae, per quas talis
adfinitas quaesita est, alia ratione
mihi nupta esse non potest, quia
meque eadem duobus nupta esse
potest, neque idem duas uxores
habere.
$ 64. Ergo si quis nefarias atque
incestas nuptias contraxerit, neque
uxorem habere uidetur neque li-
DE NUPTIIS$.
67
adoptive ascendents and descendenta
are for ever prohibited from inter-
marriage, and dissolution of the
adoption does not dissolve the
prohibition: so that an adoptive
daughter or granddaughter cannot
be taken to wife even after emanci-
pation.
§ 60. Collateral relatives also are
subject to similar prohibitions, but
not so stringent.
§ 61. Brother and sister, indeed,
are prohibited from intermarriage
whether they are born of the same
father and mother or have only one
parent in common: but though an
adoptive sister cannot, during the
subsistence of the adoption, become
a man's wife, yet if the adoption is
dissolved by her emancipation, or if
the man is emancipated, there is no
impediment to their intermarriage.
$ 62. A man may marry his bro-
ther's daughter, a practice first in-
troduced when Claudius married
his brother's daughter Agrippina,
but may not marry his sister's
daughter, a distinction laid down
in imperial constitutions, nor may
he marry his father’s sister or his
mother's sister.
§ 63. He may not marry one who
has been his wife’s mother or his
son's wife or his wife's daughter or
his father’s wife. I say, one who
has been so allied, because during
the continuance of the marriage
that produced the alliance there
would be another impediment to
the union, for & man cannot have
two wives nor a woman two hus-
bands.
$ 64. A man who contracts a
nefarious and incestuous marriage
is not deemed to have either a wife
Pa
68.
beros; itaque hi qui ex eo coitu
nascuntur, matrem quidem habere
uidentur, patrem uero non utique;
nec ob id in potestate eius (sunt,
sed tales) sunt quales sunt hi quos
mater uulgo concepit; nam et hi
patrem habere non intelleguntur,
cum ts etiam incertus sit; unde
solent spurii filii appellari, uel a
Graeca uoce quasi eropddny concepti,
uel quasi sine patre filii.
DE PERSONIS.
or children; for the offspring of
such a union are deemed to have
a mother but no father, and there-
fore are not subject to paternal
power; resembling children born
in promiscuous intercourse, who
are deemed to have no father, be-
cause their true father 1s uncertain,
and who are called bastards either
from the Greek word denoting illicit
intercourse or because they are
fatherless.
In any treatise on the law of marriage that we open we shall
meet the expression, the marriage contract; and this suggests
the inquiry, is marriage a contract, and, if so, to which class of
Roman contracts, Verbal, Literal, Real, Consensual, 8 § 89, is
Roman marriage to be referred ? Most writers assume that 1t was
a, Consensual contract, on the strength of texts like the following:
Nuptias non concubitus sed consensus facit, Dig. 85, 1,15. * Mar-
riage does not depend on cohabitation, but on consent.’ Ortolan,
however, remarks that consensual contracts could be formed by
absent contractors, Inst. 8, 2, whereas a marriage could not be con-
tracted in the absence of the wife, Paul, 2, 19, 18; and shows that,
besides the consent of the parties, delivery of possession of the wife
io the husband was required, from which he infers that Roman,
marriage was not a Consensual but à Real contract. It is true that
marriage might be contracted in the absence of the husband; but
this was only under certain conditions, Dig. 28, 21,5. ‘A man in
his absence may marry by letter or message, provided the woman is
led to his house: a woman in her absence cannot marry by letter
or message, for the leading must be to the husband’s house, as the
domicile of the married pair.’ And precisely the same conditions
were sufficient in other cases to constitute delivery of possession,
Dig. 41, 2, 18, 2.. * If a vendor deposit any article in my house by
my order, I have possession of it though I have never touched it.’
Consensus, then, in the above-quoted passage, is not opposed to
delivery of possession, but to cohabitation, or to the use of certain
words or certain documents, or to the solemn and graceful cere-
monial with which custom surrounded the matrimonial union.
. Real contracts, however, are executory on one side and executed
on the other, whereas in the conjugal relation both parties are on
the same footing in respect of execution ; and: we may ask whether
1. $§ 56-64.) DE NUPTIIS; 69
marriage is a contract at all; whether it does not rather fall under
the opposite category of alienation or conveyance, Instead of finding
its analogon in locatio-conductio or societas (consensual contracts)
or pignus or commodatum (real contracts), may we not rather, with
Savigny, find it in transfer of dominion or other creations of real
right, such as adoption, the concession of patria potestas, or emanci-
pation, investiture with independent status? Did not tradition, or
delivery of possession, operate to engender, not a personal right, as
in real contract, but a real right, as in alienation of ownership, 2
§ 65 ? This seems the truer view, and if we use the expression, mar-
riage contract, we must use the term contract not in a specific sense,
as opposed to conveyance, but in the generic sense of bilateral
disposition (as opposed to unilateral disposition, e.g. testation) a
sense embracing both contract proper and conveyance, and extending
beyond the sphere of Property into the relations of domestic life.
Contract proper and conveyance, though generally contrasted in
jurisprudence, have much in common. If contract in its narrower
sense is defined to be the concurrence of two manifestations of will
creating a jus in personam, and conveyance the concurrence of two
manifestations of will creating a jus in rem, the concurrence of two
manifestations of will creating a jus is an element common to both
terms of the comparison, and this common element may be denomi-
nated in a generic sense a contract. Contract in the narrower
sense may then be distinguished as an obligative contract and con-
veyance as a translative contract, and the latter head will include
the contract of marriage, if we continue to employ this expression.
As in respect of property or dominion we find in Roman law the
distinction of Quiritary and Bonitary, that is, of civil and gentile,
ownership, so in respect of the conjugal relation we find the distinc-
tion of Roman or civil marriage (connubium, justae nuptiae, justum
matrimonium) and gentile marriage (nuptiae, matrimonium), of
which the former alone was valid at civil law (connubium est uxoris
jure ducendae facultas, Ulpian, 5, 8; * connubium is the capacity of
marriage valid by civil law ^) and capable of producing patria potestas
and agnatio, though the latter produced legitimate children (justi as
opposed to naturales liberi) and cognatio or natural relationship.
Capacity of civil marriage (connubium) is (a) absolute and (2)
relative. (a) Only citizens have the absolute capacity of civil
marriage, and such Latins and aliens as are specially privileged,
$56: slaves are incapable both of civil and gentile marriage.
70 DE PERSONIS. [1. $$ 56-64.
(2) Capacity of civil marriage is, however, always relative to another
person who forms the other party to the union. A citizen only has
connubium with a citizen or with such Latins and aliens as are
specially privileged ; and, before the lex Papia Poppoea was passed,
a freeborn citizen (ingenuus) had no connubium with a citizen by
manumission (libertinus). Lege Papia cavetur omnibus ingenuis
praeter senatores eorumque liberos libertinam uxorem habere licere,
Dig. 28, 2,28. ‘The lex Papia permits all freeborn citizens, except
senators and their children, to marry freedwomen.’
$ 58. The prohibition of marriage between collateral relations,
originally perhaps extended as far as there were legal names for the
relationship, ie. as far as the sixth degree, for Tacitus mentions
that second cousins were once incapable of intermarriage, sobri-
narum diu ignorata matrimonia, Ann. 12, 6; the prohibition was
subsequently reduced to the fourth degree, i.e. to the intermarriage
of first cousins (consobrini), Ulpian, 5,6; and finally to the third
degree ; with this restriction, however, that if one of the collaterals
was only removed by one degree from the common ancestor (stipes
communis), he was regarded as a quasi ascendent (loco parentis) and
incapable of intermarriage at any degree: thus, a man could not
marry his brother's or sister's granddaughter, though only related
in the fourth degree, Cod.5, 4,18. Degrees in the direct line were
reckoned by counting the generations or births to which a person
owed his descent from an ancestor: thus, a man is one degree from
his father, two from his grandfather : in the transverse or collateral
line, by adding the degrees which separate each collateral from the
common stock; thus, a man is two degrees from his sister, three
from his niece.
§ 62. Constantine restored the ancient law and prohibited mar-
riage with a brother’s daughter as incestuous, Cod. Theod. 1, 2.
§ 63. Alliance (affinitas) is the relationship of a person to the kin
(cognates) of a spouse. The husband is allied to the kin of the wife,
the wife to the kin of the husband ; but there is no alliance between
the kin of the husband and the kin of the wife. The following are
some of the names given to these relationships, In the ascending
line the father and mother of the wife or husband are socer and
socrus (father-in-law, mother-in-law), and in relation to them the
husband of the daughter and wife of the son are gener and nurus
(son-in-law, daughter-in-law). In the descending line the children
of the spouse are privignus and privigna (step-son, step-daughter),
1. $ 65-75.] DE ERRORIS CAUSAE PROBATIONE. 71
and in relation to them the husband of the mother and the wife of
the father are vitricus and noverca (step-father and step-mother).
In the collateral line the husband’s brother is levir (brother-in-law),
the husband’s sister is glos (sister-in-law). Intermarriage with allies
m the direct line, or their ascendents or descendents, was absolutely
prohibited ; collateral alliance was no impediment in the time of
Gaius, but at a later period marriage with a deceased brother’s
wife or a deceased wife’s sister was forbidden, Cod. 5, 5, 5
To the marriage of a filius- or filia-familias the consent of the
father was required: but if he withheld it without a reason he
could be compelled by the magistrate to give it, and, in the case of
a daughter, to provide a dower, D. 28, 2, 19: one of several in-
stances in which, as the condition of the validity of a title, when
a voluntary action could not be obtained, the legislator substituted
a compulsory action, instead of simply declaring the action unne-
eeseary. See § 190, comm.
DE ERRORIS CAUSAE PROBATIONE.
$ 65. | Aliquando autem euenit, ut
qui statim ut na|ti sunt,
parentum in potestate non fiant, ii
postea tamen redigantur in potes-
tatem.
§ 66. Veluti si Latinus ex lege
Aelia Sentia uxore ducta filium
procreauerit aut Latinum ex Latina
sut ciuem Romanum ex ciue Ho-
mana, non habebit eum in potestate;
sed si poste& causa probata tus
(Quiritium) consecutus. fuerit, m-
mul eum in potestate sua habere
incipit.
$67. Item si ciuis Romanus
Latinam, aut peregrinam uxorem
duxerit per ignorantiam, cum eam
ctuem Romanam esse crederet, et
filium procreauerit, hic non est in
potestate eius, quia ne quidem ciuis
Romanus est, sed aut Latinus aut
peregrinus, id est eius condicionis
cuius et mater fuerit, quia non
aliter quisque ad patris condicionem
accedit, quam si inter patrem et
matrem eius conubium sit; sed ex
senatusconsulto permittitur causam
$ 65. It sometimes happens that
children when first born are not in
their father's power, but are subse-
quently brought into subjection to
him. |
$ 66. Thus, under the.lex Aelia
Sentia a Latin who marries and
begets & son of Latin status by a
Latin mother, or a citizen of Rome
by a Roman mother, is not invested
with power over him ; but on proof
of his above-mentioned statutory
title, he becomes a citizen of Rome
along with his son, who is hence-
forth subject to his power.
$ 67. Again, if a Roman citizen
marry a Latin or an alien woman
in a mistaken belief that she is a
citizen of Rome, the son whom he
begets is not in his power, not being
born a citizen of Rome, but a Latin
or an alien, that is to say, of the
same status as his mother, for a
child is not born into the condition
of his father unless his parents had
capacity of civil marriage: but a
senatusconsult allows the father to
prove a cause of justifiable error,
72 DE PERSONIS.
erroris probare, et ita uxor quoque
et filius ad ciuitatem Romanam
perueniunt, et ex eo tempore incipit
filius in potestate patris esse. idem
iuris est si eam per ignorantiam
uxorem duxerit quae dediticiorum
numero est, nisi quod uxor non fit
ciuis Romana.
$ 68. Item si ciuis Romana per
errorem nupta sit peregrino tam-
quam ciui Romano, permittitur ei
causam erroris probare, et ita filius
quoque eius et maritus ad ciuitatem
"Romanam perueniunt, et aeque
simul incipit filius in potestate
petris esse, idem iuris est si pere-
grino tamquam Latino ex lege Áelia
Sentia nupta sit; nam et de hoc
specialiter senatusconsulto cauetur.
idem iuris est aliquatenus si ei qui
dedificiorum numero est, tamquam
ciui Romano aut Latino e lege Aelia
Sentia nupta sit ; nisi quod scilicet
qui dediticiorum numero ést, in sua
condicione permanet, et ideo filius,
quamuis fiat ciuis Romanus, in po-
testatem patris non redigitur.
§ 69. Item si Latina peregrino,
cum eum Latinum esse crederet,
(e lege Aelia Sentia) nupserit,
potest ex senatusconsulto filio nato
causam erroris probare, et ita omnes
fiunt ciues Romani, et filius in
potestate patris esse incipit,
$ 70. Idem constitutum est si
Latinus per errorem peregrinam
quasi Latinam aut ciuem Romanam
e lege Aelia Sentia uxorem duxerit.
[r. $$ 65-75.
and then the wife and son become
citizens of Rome, and the son is
thenceforth in the power of the
father. The same relief is given
when & Roman citizen under a like
misconception marries afreed woman
having the status of a surrendered
foe, except that the wife does not
become a citizen of Rome.
§ 68. Again, a female citizen of
Rome who marries an alien in the
false belief that he is a Roman citi-
zen is permitted to prove a cause of
justifiable error, and thereupon her
son and husband become citizens of
Rome, and simultaneously the son
becomes subject to the power of his
father. Similar relief is given if
she marry an alien as a Latin in-
tending to comply with the condi-
tions of the lex Aelia Sentia, for
this case is specially provided for in
the senatusconsult. Similar relief
is given to a certain extent if she
marry a freedman having the status
of a surrendered foe instead of a
Roman citizen, or instead of a Latin,
whom she intended to marry ac-
cording to the provision of the lex
Aelia Sentia, except that the freed-
man husband continues of the same
status, and therefore the son, though
he becomes a citizen of Rome, does
not fall under paternal power. —
§ 69. Also a Latin freedwoman
married according to the provision
of the lex Aelia Sentia to an alien
whom she believed to be a Latin,
is permitted by the senatusconsult,
on the birth of a son, to prove a
cause of justifiable error, and there-
upon they all become Roman citizens,
and the son becomes subject to
paternal power.
§ 70. Exactly the same relief is
given if a Latin freedman mis-
takenly marry an alien woman in-
stead of a Latin freedwoman, or a
citizen of Rome, when he intended
' to comply with the lex Aelia Sentia.
i §65-75.] DE ERRORIS CAUSAE PROBATIONE.
$ 71. Praeterea si ciuis Romanus
qui se credidisset, Latinum esse, ob
id Latinam (uxorem duxerit), per-
mittitur es filio nato erroris causam
probare, tamquam (5i) elege Aelia
Sentia uxorem duxisset. Item his
qui cum ciues Romani essent, pere-
grinos se esse credidissent et pere-
grinas uxores duxissent, permitti-
tur ex senatusconsulto filio nato
causam erroris probare; quo facto
fiet | uxor ciuis Romana et filius
non solum ad ciwita|tem Ro-
manam peruenit, sed etiam in po-
testatem patris redigitur.
$ 72. Quaecumque de filio esse
diximus, eadem et de filia dicta in-
tellegemus.
$73. Et quantum ad erroris
causam probandam attinet, nihil
interest cuius aetatis filius sit |
|—, si minor anni-
culo eit filius filiaue, causa probari |
non potest. nec me praeterit in
aliquo rescripto diui Hadriani ita
esse constitutum, tamquam quod ad
erroris quoque | causam probandam
-| | ——imperator ——
dedit.
$ 74. (Sed) si peregrinus ciuem
Romanam uxorem duxerit, an ex
senatusconsulto causam pro|bare
possit, quaesitum est. probare |
causam non potest, quamuis ipse—
——J|hoc ei specialiter concessum
est. sed cum peregrinus ciuem Ro-
manam uxorem duxisset et filio
natoalias ciuitatem Romanam conse-
cutus esset, deinde cum quaereretur
an causam probare posset, rescripsit
imperator Antoninus proinde posse
eum causam probare, atque si pere-
grinus mansisset. ex quo colligi-
mus etiam peregrinum causam pro-
bere posse.
73
6 71. Further, & Roman citizen
who marries a Latin freedwoman,
believing himself to be a Latin, is
permitted on the birth of & son to
prove the.cause of his mistake as
if he had married according to the
provisions of the lex Aelia Sentia.
So, too, a Roman citizen, who
marries an alien, believing himself
to be an alien, is permitted by the
senatusconsult on the birth of a son
to prove the cause of the mistake,
and then the alien wife becomes a
Roman citizen, and the son becomes
a Roman citizen and subject to the
power of the father.
§ 72. Whatever has been said of
& son applies to a daughter.
$ 73. And as to the proof of the
cause of error, the age of the son or
daughter is immaterial, except that,
if the marriage was contracted with
an intention to satisfy the require-
ments of the lex Aelia Sentia, the
child must be a year old before the
cause can be proved. I am aware
that a rescript of the late Emperor
Hadrian speaks as if it was a con-
dition of proof of the cause of error
that the son must be a year old,
but this is to be explained by the
particular circumstances of the case
in which this rescript was granted.
: $74. It is a question whether
an alien, who has married a Roman
wife can prove cause of error under
the 8. C. But when an alien, be-
lieved to be a Roman citizen, mar-
ried a Roman wife, and subsequent-
ly to the birth of a son acquired the
Roman franchise, the question aris-
ing whether he could prove the
cause of error, a rescript of An-
toninus Pius decided that he was
just as competent to prove as if
he had continued an alien: from
which may be gathered that an alien
is competent to prove the cause of
error,
74
§ 75. Ex Ais quae diximus ap-
paret, siue ciuis Romanus pere-
grinam siue peregrinus ciuem Ro-
manam uxorem duxerit, eum qui
nascitur peregrinum esse. sed siqui-
dem per errorem tale matrimonium
contractum fuerit, emendari uitium
eius ex senatusconsulto licet (secun-
dwm) ea quae superius diximus,
si uero nullus error interuenerit,
(sed) scientes suam condicionem
ita colerent, nullo case emendatur
uitium etus matrimonii.
DE PERSONIS.
[r. 6$ 76-87.
$75. Hence it appears that a
person born in marriage is an alien
if his father was a Roman citizen
and his mother an alien, or if his
father was an alien and his mother
& Roman citizen, though if the mar-
riage was contracted under a mis-
take, a remedy is supplied by the
S. C. as above explained. No relief
is given in any case, where the
perties did not contract marriage
under an error, but were aware of
their condition.
Mistake or error sometimes conferred a right which a party
could not have acquired if he had not acted under a mistake.
Thus,
the lender of money to a filiusfamilias without the father’s consent
had no legal claim to recover, unless he lent believing the borrower
to be independent (sui juris), and possession could not mature by
usucapion into ownership, unless it had a bona fide inception, i.e.
unless it commenced in an honest misunderstanding. The relief of
error had similarly important results in questions of status. Erroris
eausam probare seems to mean ‘to make good a title by error,’
i.e. to establish, as title (causa) to relief, a probabilis error or justa
ignorantia; i.e. & mistake not due to negligence; for negligence
would exclude from relief.
The subjection of a child to patria potestas by erroris causae
probatio operated to invalidate a previously executed will, like the
subsequent birth (agnatio) of a child in civil wedlock (suus pos-
tumus), 2 $ 142.
DE STATU LIBERORUM.
$ 76. Loquimur autem de his
scilicet, (inter) quos conubium non
sit; nam alioquin si ciuis Romanus
peregrinam cum qua ei conubium
est, uxorem duxerit, sicut supra
quoque diximus, iustum matrimo-
nium contrahitur; et tunc ex his
qui nascitur, ciuis Romanus est et
in potestate patris erit.
$ 77. Item si ciuis Romana pere-
grino cum quo ei conubium est,
nupserié, peregrinus sane procreatur
et is iustus patris filius est, tam-
quam si ex peregrina eum pro-
$ 76. It is to be remembered that
we are speaking of a marriage be-
tween persons who have not the
capacity of entering into a civil
marriage with one another. When,
however, a Roman takes to wife an
alien privileged as I described ($ 56),
he contracts a civil marriage, and
his son is born a Roman citizen and
subject to his power.
$77. Soif s female Roman marry
an alien with whom sbe has cape-
city of civil marriage, her son is an
alien and a lawful son of his father,
just as if his mother hád been an
E $$ 76-87.]
creasset. hoc tamen tempore (ex)
senatusconsulto quod auctore diuo
Hadriano factum est, etiamsi non
fuerit conubium inter ciuem Ro-
manam et peregrinum, qui nascitur,
iustus patris filius est.
$ 78. Quod autem diximus inter
ciuem Romanam peregrinwnque
—— qui | nascitur, peregrinum esse,
lege Minicia cauetur, ( > | est,
ut 5—— parentis condicionem se-
quater. | eadem lege enim ex diuerso
cauetur, «t 8i peregrinam, cum qua
ei conubium non sit, uxorem dux-
er. ciuis Romanus, peregrinus ex
eo coitu nascatur. sed hoc maxime
casu necessaria lex Minicia; nam
remota ea lege diuersam condici-
onem sequi debebat, quia ex eis
inter quos non est conubium, qui
nascitur, iure gentium matris con-
dicioni accedit. qua parte autem
iubet lex ex ciue Romano et pere-
grina peregrinum nasci, superuacua
uidetur; nam et remota ea lege
hoc utique iure gentium | futurum
erat.
$ 79. Adeo autem hoc ita est, ut
non | solum
exterae nationes et gentes sed etjam
qui Latini nominantur; sed ad alios
latinos pertinet, qui proprios po-
pulos propriasque ciuitates habe-
bant et erant, peregrinorum numero.
$80. Eadem ratione ex contrario
ex Latino et ciue Romana, siue ex
lege Aelia Sentia siue aliter con-
tractum fuerit matrimonium, ciuis
Romanus nascitur. fuerunt tamen
qui putauerunt ex lege Aelia Sen-
tia contracto matrimonio Letinum
nasci quia uidetur eo casu per
DE STATU LIBERORUM.
75
alien. At the present day, by à
senatusconsult passed on the pro-
position of the late Emperor Ha-
drian, even without civil marriage
the offspring of a Roman woman and
alien is a lawful son of his father.
$78. The rule we have stated
that when a female Roman citizen
marries an alien, the offspring is
an alien, if there is no capacity of
civil marriage between them, is
enacted by the Lex Minicia, which
also provides that when a Roman
citizen marries an alien woman,
and there is no capacity of civil
marriage between them, their off-
spring shall be an alien. This
special enactment was required in
the first case, as otherwise the child
would follow the condition of the
mother; for when there is no ca-
pacity of civil marriage between
perents, their offspring belongs to
the condition of his mother by Gen-
tilelaw. But the part of this law
which ordains that the offspring of &
Roman citizen and an alien womanis
an alien seemsto besuperfluous, since
without any enactment this would
be so under the rule of Gentile law.
$ 79. And so under this rule of
Gentile law the offspring of a Latin
freedwoman by a Roman citizen
with whom she has no capacity
of civil marriage is a Latin, al-
though the statute did not refer
to those who are now designated
Latins; for the Latins mentioned
in the statute are Latins in another
sense, Latins by race and members
of a foreign state, that is to say,
aliens.
§ 80. By the same principle, con-
versely, the son of a Latin and a
Roman woman is by birth a Roman
citizen, whether their marriage was
contracted under the lex Aelia Sen-
tia or otherwise. Some, however,
thought that if the marriage was
contracted in accordance with the
70
legem Aecliam Sentiam et Iuniam
conubium inter eos dari, et semper
conubium efficit, ut qui nascitur
patris condicioni accedat; aliter
uero contracto matrimonio eum qui
nascitur, iure gentium matris con-
dicionem sequi et ob id esse ciuem
Romanum. sed hoc iure utimur ex
senatusconsulto, quo auctore diuo
Hadriano significatur, ut quoqwo
modo ex Latino et ciue Romana
natus ciuis Romanus nascatur.
$81. His conuenienter etam illud
&enatusconsultum | diuo Hadriano
auctore significauit, ut (qui) ex
letino et peregrina, item contra
(qui) ex peregrino et Latina nas-
citur, is matris condicionem se-
quatur.
$82. Illud quoque his conse-
quens est, quod ex ancilla et libero
iure gentium seruus nascitur, et
contra ex libera et seruo liber nas-
citur.
$ 83. Animaduertere tamen de-
bemus, ne iuris gentium regulam
uel lex aliqua uel quod legis uicem
optinet aliquo casu commutauerit.
$ 84. Ecce enim ex senatuscon-
sulto Claudiano poterat ciuis Ro-
mana quae alieno seruo volente
domino eius cotit, ipsa ex pactione
libera permanere, sed seruum pro-
creare; nam quod inter eam et
dominus istius serui conuenerit, eo
senatusconsulto ratum esse iubetur.
sed postea diuus Hadrianus iniqui-
tate rei et inelegantia iuris motus
restituit iuris gentium regulam, ut
cum ipsa mulier libera permaneat,
liberum pariat.
DE PERSONIS.
[1. $$ 76-87.
lex Aelia Sentia, the offspring is a
Latin by birth, because in this hy-
pothesis the lex Aelia Sentia and
Junia Norbana confer a capacity of
civil marriage, and a civil marriage
always transmits to the offspring
the status of the father: if the
Marriage was otherwise contracted,
they held the offspring acquires by
Gentile law the status of his mother.
However, the law on this point is
now determined by the senatuscon-
sult passed on the proposition of
the late Emperor Hadrian, which
enacts that the son of a Latin and
a Roman woman is under every
hypothesis a Roman citizen.
§ 81. Consistently herewith Ha-
drian’s senatusconsult provides that
the offspring of the marriage of a
Latin freedman with an alien woman
or of an alien with a Latin freed-
woman follows the mother’s condi-
tion.
§ 82. Consistently herewith the
offspring of a female slave and a
freeman is by Gentile law a slave,
the offspring of a freewoman and
a slave is free.
§ 83. We must observe, however,
whether the law of nations in any
given instance is overruled by a
statute or ordinance having the
authority of a statute.
$ 84. For instance, the Sc. Clau-
dianum permitted to a female citi-
zen of Home having intercourse
with a slave with his owner's con-
sent, to continue herself in virtue
of the convention free, while she
gave birth to a slave, her agree-
ment to that effect with the owner
being made valid by the senatus-
consult. Subsequently, however, the
late Emperor Hadrian was induced
by the injustice and anomaly of
the ordinance to re-establish the
rule of Gentile law, that as the
mother continues free the offspring
follows her status.
1. $$. 76-87. |
$ 85. (Jtem e lege ) ex ane
cilla et libero poterant beri nasci ;
uam ea lege cauetur, ut si quis cum
aliena ancilla quam credebat libe-
ram esse coierit, siquidem masculi
nascantur, liberi sint, si uero femi-
nae, ad eum pertineant, cuius mater
ancilla fuerit. sed et in hac specie
diuus Vespasianus inelegantia iuris
motus restituit iuris pentium regu-
lam, ut omni modo, etiamsi masculi
nascantur, serui sint eius cuius et
mater fuerit.
$ 86. Sed illa pars eiusdem legis
salwa est, ut ex libera et seruo
alieno quem sciebat seruum esse,
serui nascautur. itaque apud quos
talis lex non est, qui nascitur, iure
gentium matris condicionem sequi-
tur et ob id liber est.
5$ 87. Quibus autem casibus ma-
tris et non patris condicionem se-
quitur qui nascitur, isdem casibus
in potestate eum patris, etiamsi is
ciuis Romanus sit, non esse plus
quam manifestum est.. et ideo
superius rettulimus quibusdam ca-
sibus per errorem non iusto con-
tracto matrimonio senatum interue-
nireet emendareuitium matrimonii,
eoque modo plerumque efficere, ut
in potestatem petris filius redi-
DE STATU LIBERORUM.
77
§ 85. By a law (the name of
- which is unknown) the offspring
of a female slave by a freeman
might be free, for that law pro-
vided that the offspring of a free- -
man by another person’s female
slave whom he believed to be free
shall be free if they are male, but
shall belong to their mother's pro.
prietor if they are female: but here
too the late Emperor Vespasian was
moved by the anomalous character of
the rule to re-establish the canon of
Gentile law, and declared that the
offspring in every case, whether male
or female, should be slaves and the
property of their mother's owner.
$ 86. But another clause of that
law continues in force, providing
that the offspring of & freewoman
by another person's slave whom she
knows to be a slave are born slaves,
though where this law is not estab-
lished the offspring by Gentile law
follow the mother's condition and
are free.
$ 87. When the child follows the
mother's condition instead of the
father's, it is obvious that he is not
subject to the power of the father,
even though the father is a Roman
citizen: but in some cases, as I
mentioned above ($ 67), when a
mistake was tbe occasion of & non-
civil marriage being contracted, the
senate interferes and purges the de-
fect of the marriage and this gene-
rally has the effect of subjecting
the son to the power of the father.
The rules relating to the status of the offspring of parents of
unequal status are at first sight chaotic and bewildering, but they
are reducible to a few canons.
The most general canon is the rule
of Gentile law, that children follow the condition of the mother,
This is subject to two exceptions.
1. Children born in civil wedlock follow the condition of the
father, Cf. §§ 88, 89, 94.
2. Children born in gentile (lawful) wedlock of a Roman mother
78 DE PERSONIS. [r. $$ 88-92,
and alien father follow the condition of the father: this was a
special enactment of the lex Minicia.
. $ 78. These rules are stated in the following passages: Lex
naturae haec est ut qui nascitur sine legitimo matrimonio matrem
sequatur nisi lex specialis aliud inducat, Dig.1,5. ‘By the law of
nature children not born in civil wedlock follow the status of the
mother, in the absence of a special statute to the contrary Con-
nubio interveniente liberi semper patrem sequuntur: non inter-
veniente connubio, matris conditioni accedunt, excepto eo qui ex
peregrino et cive Romana peregrinus nascitur, quoniam lex Minicia
(in MS. Mensia) ex alterutro peregrino natum deterioris parentis
conditionem sequi jubet, Ulpian, 5, 8. ‘In civil wedlock the
children have the status of the father, in the absence of civil
wedlock of the mother; except that the children of an alien father
and Roman mother are aliens, as the lex Minicia makes the children
aliens when either parent is an alien.
The Sc. Claudianum introduced some special enactments respect-
ing the intercourse’ of freewomen with slaves, which, however, were
subsequently abolished.
a. If a freewoman had intercourse with a slave with the consent
of his proprietor she retained her freedom, though degraded to the
class of a freed woman, but her issue was the slave of the proprietor.
The slavery of the issue was abolished by Hadrian, § 84.
b. If a freewoman persisted in intercourse with the slave of another
person against the will and in spite of the prohibition of the pro-
prietor, after three denunciations on his part she was awarded to him
by the magistrate as a slave, and her issue, whether born before or
after the adjudication, became slaves of the same person, who also
acquired her estate by a species of universal succession. Cf. $$ 91,
160. "This terroristie law, which, from the minuteness with which
the details are developed (Paulus, 2, 21), appears to have been often
applied, was not abrogated till the time of Justinian, Inst. 8, 12, 1.
c. If a freeman had intercourse with a slave whom he supposed
to be free, her male children were born into freedom. This relief
of error was abolished by Vespasian as anomalous (inelegans), § 86.
. $80. There was not much plausibility in the view that a mar-
riage under the lex Aelia Sentia, merely because it was statutory
(regulated by statute), was therefore a civil marriage; and we may
regard the senatusconsult of Hadrian, which denied ite civil character,
as purely declaratory.
1.8 88-92.]
§ 88. Sed si ancilla ex ciue Ro-
mano conceperit, deinde manumissa
eius Romana facta sit, et tunc
pariat, licet. ciuis Romanus sit
qui nascitur, sicut pater eius, non
tamen in potestate patris est, quia
neque ex iusto coitu conceptus est
neque ex ullo senatusconsulto talis
coitus quasi iustus constituitur.
$ 89. Quod autem placuit, si an-
cilla ex ciue Romano conceperit,
deinde manumissa pepererit, qui na-
sciturliberum nasci, naturaliratione
fit; nam biqui illegitime concipiun-
tur, statum sumunt ex eo tempore
quo nascuntur ; itaque si ex libera
nascuntur, liberi fiunt, nec interest
ex quo mater eos conceperit, cum
ancilla fuerit; at hi qui legitime
concipiuntur, ex conceptionis tem-
pore statum sumunt.
$ 90. itaque si cut mulieri ciui
Romanae praegnati aqua et igni
interdictum fuerit, eoque modo pere-
grina facta tunc pariat, conplures
distinguunt et putant, siquidem ex
iustis nuptiis conceperit, ciuem Ro-
manum ex ea nasci, si uero uulgo
conceperit, peregrinum ex ea nasci.
$ 91. Item si qua mulier ciuis
Romana s exsenatusconsulto
Claudiano ancilla facta sit ob id quod
alieno seruo inuito et denuntiante
domino eius (coterit), conplures dis-
ünguunt et existimant, siquidem ex
justis nuptiis concepéíus sit, ciuem
Romanum ex ea nasci, si uero uulgo
conceptus sit, seruum nasci eius
euius mater facta esset ancilla.
§ 92. Peregrina quoque si uulgo
eonceperit, deinde ciuis Romana
(fiat) et tune pariat, ciuem. Ro-
manum perit; si uero ex peregrino
secundum leges moresque peregri-
DE STATU LIBERORUM.
79
§ 88. If a female slave conceive
by a Roman citizen and become by
manumission a citizen of Rome be-
fore giving birth to a son, her son,
though a citizen of Rome like his
father, is not in his father’s power,
because he was not begotten in civil
wedlock, and there is no senatus-
consult which cures the defect of
the intercourse in which he was
begotten.
§ 89. The decision that when a
female slave conceives by a Roman
citizen and is manumitted before
childbirth, her offspring is born
free, is a rule of natural law; for in
illegitimate or non-civil conception
the status of the offspring depends
on the moment of birth, and the
mother’s freedom at the moment of
birth makes the offspring free, and
the status of thefather isimmaterial:
but in legitimate or civil conception
the status of the child is determined
by the time of conception.
§ 90. Accordingly, if a female
citizen of Rome being pregnant is
interdicted from fire and water, and
becoming thus an alien gives birth
to a child, many jurists distinguish
and hold that her offspring is a
Roman citizen if begotten in civil
wedlock, but if in promiscuous inter-
course, an alien.
§ 91. So if a female citizen of
Rome being pregnant is reduced to
slavery under the Sc. Claudianum
for having intercourse with a slave
against the prohibition of his owner,
many jurists make a distinction and
hold that her offspring, if conceived
in civil wedlock is a citizen of Rome,
if conceived in illicit intercourse is
a slave of the person who becomes
proprietor of the mother.
§ 92. Also if an alien woman
conceive in illicit intercourse and
afterwards becomes a Roman citizen
and gives birth to a child, the child
is 8 Roman citizen; but if she con-
80
norum conceperit, ita uidetur ex
senatusconsulto quod auctore diuo
Hadriano factum est, ciuem Ro-
manum parere, si et patri eius
ciuitas Romana donetur,
DE PERSONIS.
[1 $$ 88-92,
ceived by an alien, to whom she was
married in accordance with alien
laws and customs, it seems that
upon Hadrian's senatusconsult her
offspring is only born a Roman
citizen, if the father also has ac-
quired the Roman franchise.
Supposing the status of a parent changes during the period of
gestation (if, for instance, the mother is a slave at the time of
conception and free at the time of birth), what effect has this on
the status of the issue? The following rule was adopted: in cases
where the child follows the status of the father, that is, when it is
begotten in civil marriage, the status of the father at the tame of
conception determines the status of the child; where the child
follows the status of the mother, that is; when it is begotten in
gentile marriage or in promiscuous intercourse, the status of the child
is determined by the status of the mother at the moment of birth.
Ulpian, 5, 10. ‘Children born in civil wedlock have their status
fixed at the time of conception; children born out of civil wedlock
have their status fixed at the time of delivery.’ That is to say, the
legal position of the issue is made to follow the analogy of its
physical condition. The physical influence of the father terminates
with conception; his subsequent health, life, or death, does not
affect the physical state of the child; but the child is affected by
every change in the physical condition of the mother, her health,
life, or death, up to the moment of birth. In imitation of this
analogy, the status of the child, when it depended on the status of
the father, was not affected by any change in that status subsequent
to the period of conception; but when it depended on the status of
the mother it varied with every change in that status up to the
moment of birth. By the time of Gaius, though the change is not
mentioned in the text, this rule was modified in favour of liberty,
and it was established that if the mother was free either at the date
of conception or at the date of birth or at any intermediate period,
the issue was born free. Si libera conceperit et ancilla facta peperit,
liberum parit, id enim favor libertatis exposcit. Si ancilla conce-
perit et medio tempore manumissa sit, rursus facta ancilla peperit,
liberum parit, media enim tempora libertati prodesse, non nocere
etiam possunt, Paulus, 2, 24, 2. Cf. Inst. 1, 4 pr.
§ 88. The issue of a mother who was a slave at the date of con- _
ception but is & citizen at the date of birth, though it is born a
1 § 93-96. ] DE STATU LIBERORUM. 81
Roman citizen, is not subject to patria potestas, becatse it does not
satisfy the definition in $55, liberi quos justis nuptiis procreavimus,
‘a child begotten in civil wedlock.’
_ § 90. Aquae et ignis interdictio was originally a permission to
avoid punishment under the penal code by voluntary exile. . Subse-
quently it was employed as a punishment, and under the emperors
assumed the form of deportatio in insulam. It was attended with
confiscation of goods, and involved loss of civitas but not of libertas,
$$ 128, 161.
§ 92. The offspring of a wedded mother who was an alien at the
date of conception and is a citizen at the date of birth, according to
the general rule of gentile law, should be born a Roman citizen ; but
this would contravene the above-mentioned lex Minicia, which en-
acted that the issue of a marriage is an alien whenever either parent
is an alien, $ 78.
$ 93. Si peregrinus sibi liberis-
que suis ciuitatem Romanam peti-
erit, non aliter filii in potestate eius
fient, quam si imperator eos in
potestatem redegerit ; quod ita de-
mum 18 facit, si causa cognita aesti-
mauerit hoc filis expedire. dili-
gentius autem exactiusque causam
cognoscit de inpuberibus absenti-
pnegne i ; et haec ita edicto diui
Hadriani significantur.
§ 94. Item si quis cum uxore
praegnate ciuitate Romana donatus
sit, quamuis si qui nascitur, ut
supra diximus, ciuis Romanus sit,
tamen in potestate patris non fit ;
idque subscriptione diui Hadriani
significatur; qua de causa qui in-
tellegit uxorem suam esse praegna-
tem, dum ciuitatem sibi et uxori
ab imperatore petit, simul ab eodem
petere debet, ut eum qui natus erit,
in potestate sua habeat.
$ 95. Alia causa est eorum qui
letü iure cum liberis suis ad
eiuitatem Homanam perueniunt;
G
$ 93. If an alien has obtained
by petition for himself and his
children & grant of Roman citi-
zenship, the children do not fall
under the power of the father
except by express ordinance of
the emperor, which he only makes
if, on hearing the facts of the
case, he deems it expiedient for
the interest of the children, and
only after & careful and minute
inquiry if they are infants and
absent, as an edict of the Emperor
Hadrian intimates,
§ 94. Also if an alien and his
pregnant wife receive a grant of
Roman citizenship, the child, though
a Roman citizen, as above men-
tioned, is not born in the power of
his father according to a rescript of
the late Emperor Hadrian; where-
fore, if he knows his wife to be
pregnant, an alien who petitions
the emperor for the Roman fran-
chise for himself and his wife ought
at the same time to petition that his
son may be subjected to his power.
$ 95. The rule is different for
those who with their children are
made citizens of Rome by right of
82
nam horum in potestate fiunt
liberi, quod ius quisbusdam pere-
grinis ciuitatibus datum est uel a
populo Romano uel a senatu uel a
Cae|sare.—
§ 96. aut maius est Latijum
aut minus: maius est Latium, cum
et hz qui decuriones leguntur et ei
qui honorem aliquem aut magis-
tratum gerunt, ciuitatem Romanam
consecuntur; minus Latium est, cum
hi tantum qui magistratum uel hon-
orem gerunt, ad ciuitatem Romanam
perueniunt ; idque conpluribus epis-
DE PERSONIS,
[1. $$ 93-96,
Latinity, for their children fall
under their power; this right
has been conceded to certain alien
states either by the Roman people,
or by the senate or by the emperor.
$ 96. The right of Latinity is
either greater or lesser. Greater
Latinity is the right whereby those
who are chosen decuriones or hold
some high office or magistracy ac-
quire Roman citizenghip: lesser
Latinity is when only those who
are magistrates or hold high office
acquire the Roman franchise, a
distinction intimated by several
tulis principum significatur,
imperial rescripts,
The grant of civitas was either made to communities or to
individuals. It was a lucrative source of revenue to the em-
perors, The fees to be paid were not small, Acts of the Apostles,
22, 28, and the new-made civis was regarded as a manumitted slave
of the emperor, and was expected to remember the emperor in his
will. The philosophic emperor, Marcus Aurelius, under whom
Gaius flourished, granted the Roman franchise to all who were
ready to pay the fees, data cunctis promiscue civitas Romana,
Aurelius Victor, 16. Antoninus Caracalla, a.p. 211—217, after
raising from one-twentieth to one-tenth the tax on manumissions
and the testamentary succession and legacy duty, which was only
levied on Roman citizens, exhausted for a time this source of revenue
by conferring at a stroke the Roman franchise on every free subject
of the empire; In orbe Romano qui sunt, ex constitutione impera-
toris Antonini cives Romani effecti sunt, Dig. 1, 5, 17. This was
not a general manumission of slaves nor an abolition of the status of
Latin or alien, but a grant of the franchise to all existing Latins
and aliens, imposing in effect a capitation tax on the individuals,
and leaving those orders to be again replenished by subsequent
manumissions of Latini and dediticii, The value of the privileges
of civis Romanus was gradually declining. The political portions
of civitas had been extinguished by the establishment of the empire,
and Rome was destined at last to undergo the fate she had inflicted
on so many other cities. She wag sacked by Alaric, king of the
Goths, A.D. 410. She was entered by Genseric, king of the Van-
dals, and, after a sack of fourteen days, left a heap of ruins, a.p,
x. 8$ 97-107.] DE ADOPTIONIBUS. 83
455. The splendour of the title of civis Romanus was sadly dimmed
before Justinian made it acquirable by every form of manumission.
§ 94. Subscriptio was an imperial rescript written under the
petition to which it was an answer: a rescript written on a separate
document was called epistola. The latter was addressed to publie
functionaries, the former to private individuals, and by its con-
nection with the petition enabled a tribunal to which it was
submitted to investigate the truth of the allegations on which it
was founded. Cf. § 5 Comm.
The grant of patria potestas by the sovereign power to the new-
made citizen may be assimilated to the legislative grant of patria
potestas in adrogatio. Its different effects may be compared with
the incidents of Naturalization and Denization in English law.
Naturalization by act of parliament is retrospective, and puts an
alien in exactly the same state as if he had been born in the kings
ligeance, and his son born before the naturalization may inherit:
whereas the issue of a Denizen (an alien born who has obtained ex
donatione regis letters patent to make him an English subject)
eannot mherit to him, but his issue born after may. Blackstone.
$ 96. Before the recension of the text by Studemund Gaius was
supposed to have defined greater Latinity in this section as the right
whereby the magistrates of certain towns acquire the Roman fran-
ehise along with their wives and children, and lesser Latinity as the
right whereby the magistrates themselves acquire the Roman fran-
chise, but not their wives and children.
The name of a senate in a municipality was ordo decurionum
or simply ordo or curia, ite members being decuriones or curiales.
The office of decurio became very burdensome; and in order to
make it more acceptable, privileges were from time to time attached
toit. (Smith's Dict. of Antiquities, s.v, Dig. 60, 2 de decurionibus.)
DE ADOPTIONIBUS.
$ 97. |Non solum tamen naturales $ 97. Not only natural children
| secundum ea quae | diximus, are subject, as mentioned, to pa-
in potestate nostra sunt, uerum et ternal power, but also adoptive
hi quos adoptamus, children.
$ 98. Adoptio autem duobus
modis fit, aut populi auctoritate,
aut imperio magistratus ueluti
praetoris,
$ 98. Adoption is of two forms,
adoption by permission of the sove-
reign and adoption by the judicial
authority of & magistrate, for in-
stance, by the judicial authority of
the praetor.
G2
84
§ 99. Populi auctoritate adopta-
mus eos qui sui iuris sunt; quae
species adoptionis dicitur adrogatio,
quia et is qui adoptat rogatur, id
est interrogatur, an uelit eum quem
adoptaturus sit, iustum sibi filium
esse; et is qui adoptatur rogatur,
an id fieri patiatur; et populus ro-
gatur, an 1d fieri iubeat. imperio
magistratus adoptamus eos qui in
potestate parentum sunt, siue pri-
mum gradum liberorum optineant,
qualis est filius et filia, siue in-
feriorem, qualis est nepos neptis,
pronepos proneptis.
$ 100. Et quidem ill& adoptio
quae per populum fit, nusquam nisi
Romae fit; at haec etiam in pro-
uinclis apud praesides earum fieri
solet.
$ 101. Item per populum feminae
non adoptantur, nam id magis pla-
cuit; apud praetorem uero uel in
prouinciis apud proconsulem lega-
tumue etiam feminae solent adop-
tari.
$ 102. Item inpuberem apud po-
pulum adoptari aliquando, prohibi-
tum est, aliquando permissum. est ;
(—) nunc ex epistula optimi im-
peratoris Antonini quam scripsit
pontificibus, si iusta causa adop-
tionis esse uidebitur, cum quibus-
dam condicionibus permissum est.
apud praetorem uero, et in pro-
uincis apud proconsulem lega-
tumue, cuiuscumque aetatis (per-
sonas) adoptare possumus.
.. DE PERSONIS.
[1. $$ 97-107.
$ 99. Permission of the sovereign
people is required for the adoption
of an independent person, and this
form is called adrogation, because
the adopter is interrogated whether
he wishes to have the person adopt-
ed for his lawful son, the person
adopted is interrogated whether he
thereto consents, and the legislature
is interrogated whether such is its
command. The judicial authority
of a magistrate gives validity to the
adoption of a person subject to the
power of an ascendent, whether a
descendent in the first degree, as a
Son or daughter, or in & remoter
degree, as & grandson or grand-
daughter, great-grandson or great-
granddaughter.
$ 100. Adoption by the sanction
of the legislature can only be so-
lemnized at Rome, the other pro-
cess can be performed in the pro-
vinces in the court of the pre-
sident.
$ 101. Adoption by legislative
sanction is inapplicable to females,
88 has finally been ruled; but fe-
males may be adopted by the ether
mode of adoption, at Rome in the
court of the praetor, in provinces
of the people in the court of
the proconsul in provinces of
the emperor in the court of the
legate.
$ 102. The legislative adoption
of a child below the age of puberty
was at one time prohibited, at an-
other permitted; at the present
day, by the epistle of the Emperor
Antoninus addressed to the ponti-
fices, on evidence of a just cause of
adoption, it is permitted, subject to
certain conditions. In the court of
the praetor at Rome, in the court of
the proconsul in & province of the
people, and in the court of the
legate in a province of the emperor,
& person of any age may be
adopted.
i. $$ 97-107.]
$ 103. Illud utriusque adoptionis
commune est, quod et hi qui gene-
rare non possunt, quales sunt spa-
dones, adoptare possunt.
$ 104. feminae uero nullo modo
adoptare possunt, quia ne quidem
naturales liberos in potestate ha-
bent.
$ 105. Item si quis per populum
siue apud praetorem uel apud prae-
sidem prouinciae adoptauerit, potest
eundem alii in adoptionem dare.
$ 106. Sed et illa quaestio, an
minor natu maiorem natu adoptare
possit, utriusque adoptionis com-
munis est.
$ 107. illud proprium est eius
adoptionis quae per populum fit,
quod is qui liberos in potestate ha-
bet, si se adrogandum dederit, non
solum ipse potestati adrogatoris
subicitur, sed etiam liberi eius in
eiusdem fiunt potestate (amquam
nepotes.
DE ADOPTIONIBUS,
B5
$ 103. Both forms of adoption
agree in this point, that persons
incapable of procreation by natural
impotence are permitted to adopt.
$ 104. Women cannot adopt by
either form of adoption, for even
their natural children are not sub-
ject to their power.
$ 105. He who has adopted a
person either by the sanction of the
legislature or by the judicial autho-
rity of the praetor or of the pre-
sident of a province, can transfer his
adoptive son to another adoptive
father.
$ 106. Whether & younger per-
son can adopt an older is a disputed
point in both forms of adoption.
$ 107. It is peculiar to adoption
by the sanction of the legislature,
that children in the power of the
person adrogated, as well as their
father, fall under the power of the
adrogator, assuming the position of
grandchildren.
Adrogation, or the adoption of an independent person (pater-
familias), reducing him to a dependent status (filiusfamilias), was
a legislative act of the Comitia Curiata; but though, as repre-
senting the people, this assembly was legally omnipotent, it was
unconstitutional to deprive a person either of the franchise or of
domestic independence without his own consent. We learn from
Cicero the formula by which this assent was ascertained. De Domo,
29. ‘As it is an immemorial rule of law that no citizen of Rome
shall be deprived of independence or the franchise against his will,
as you have had occasion of learning by your own experience, for
I suppose that, illegal as your adrogation was in all points, you at
least were asked whether you consented to become subject to the
adrogator's power of life and death as if you were his son ;—if you
had opposed or been silent, and the thirty Curiae had nevertheless
paseed the law, tell me, would their enactment have had any bind-
ing force?" The form in which the law was proposed to the
legislative assembly is given by Gellius, 5, 19. * Adrogation is
the subjection of an independent person with his own consent to the
86 DE PERSONIS. [1. $$ 97-107.
power of a superior, and is not transacted in the dark or without
investigation. The Comitia Curiata, at which the College of Pon-
tiffs is present, are convened, and examine whether the age of the
adrogator does not rather qualify him for the natural procreation of
children, and whether the estate of the adrogatus is not the object
of fraudulent cupidity, and an oath, said to be framed by Q. Mucius,
the high pontiff, has to be taken by the adrogator. . . . Adroga-
tion, the name given to this transit into a strange family, is
derived from the interrogation of the legislative body, which is in
the following form : * May it please you to will and command that
L. Valerius shall be as completely by law and statute the son of
L. Titius, as if he were born of L. Titius and his wife, and that
L. Titius shall have power of life and death over L. Valerius as
a father has over his son. Do you will and command as I have
said, Quirites?’ "Those who voted in affirmation of the measure
proposed said (at least in other similar assemblies): Utirogas; those
who voted against it said: Antiquo. Women were originally in-
capable of being adrogated, because they were incapable of appear-
ing in the Comitia Curiata, Quoniam cum feminis nulla comitiorum
communio est, Gellius, ibid. ; but this incapacity vanished as soon
as the lex Curiata, as form of adrogation, was superseded by
imperial rescript (principale reseriptum), Dig. 1, 7, 21. Women,
being incapable of exercising parental power, could not, properly
speaking, adrogate; but they were permitted by quasi adrogation
to establish the same legal relation as existed between a mother and
her natural children, Cod. 8,48, 5. Inst. 1,11, 10. An adrogator
was usually required to be sixty years old, Dig. 1, 7, 15, and to bé
eighteen years (plena pubertate) older than adrogatus, Inst. 1, 11, 4
Originally a youth must have attamed the age of puberty before
he could be adrogated, $ 102: Sed adrogari non potest nisi jam
vesticeps . . . . quoniam tutoribus in pupillos tantam esse auctori-
tatem potestatemque fas non est, ut caput liberum fidei suae com-
missum alienae ditioni subiciant, Gellius, ibid. ‘A youth cannot be
adrogated before he has assumed the toga virilis, because a guardi
has no authority or power to subject an independent person, with
whose charge he is entrusted, to the domination of a stranger. Thé
purple-edged praetexta was generally laid aside by boys along with
the bulla aurea which they wore round their neck, on the first
Liberalia, the 17th March, Ovid, Fasti, 8, 771, after the completion
of their fourteenth year. Females did not lay aside the praetexta till
1. $$ 108-115 5.] . DE MANU,
their marriage. Antoninus Pius permitted the adrogation of youths
below the age of puberty (impubes, investis) under certain con-
ditions; e.g. the adrogator entered into a stipulation, originally
with a public slave, in later times with a public notary (tabularius),
in the event of the death of adrogatus before the age of puberty, to
restore his estate to his natural heirs, and, in the event of emanci-
pation, to adrogatus himself: and adrogatus became entitled to a
fourth part of the estate of adrogator (called quarta Antonini), of
which he could not be deprived by disinherison or by unmerited
emancipation. In the time of Justinian the adrogator only acquired
in any case an usufruct or life estate in the property of adrogatus,
which reverted to adrogatus after the death of adrogator; thatis to
say, the property of adrogatus was transformed by adrogation into
peculium adventicium. Cf. 8, 84 Comm.
The form of adoption is explained below, $ 134, under the head of
dissolution of patria potestas, for as patria potestas is vested by
adoption in the adoptive father, so it is divested from the natural
father.
The effect of adoption was much reduced by a constitution of
Justmian. If the adoption was by an ascendent, maternal or
paternal, it retained its old character: but if it was by a stranger
it neither created nor extinguished patria potestas; it did not
transfer the adopted son from his old family into a new family, and
therefore it neither destroyed nor created any tie of agnation: its
only effect was to give to the adoptive son, in the event of intestacy,
a claim against the estate of the intestate adoptive father; Cod. 8,
48,10. Inst. 1, 11, 2. 8, 1, 14,
87
DE MANU.
$108. | Nune de his personis vide-— $ 108. Let us next proceed to
consider what
amus quae in manu nostra sunt.
quod | et ipsum ius proprium ciuium
Romanorum est.
$109. Sed in potestate quidem
et masculi et feminae esse solent ;
in manum autem feminse tantum
conuenient.
$ 110. Olim itaque éribus modis
in manum conueniebant, usu, farreo,
coemptione,
persons are subject
to the Hand, another right only
vested in citizens of Rome.
$ 109. Power is a right over
males as well as females: Hand
relates exclusively to females.
$ 110. In former days there were
three modes of becoming subject to
Hand, possession, confarreation, co-
emption,
88
2° § 111. Usu in manum conueni-
ebat quae anno continuo nupta per-
seuera&bat; quia enim ueluti annua
possessione usucapiebatur, in fami-
liam uiri transibat filiaeque locum
optinebat. itaque lege Xii tabu-
larum cautum est, ut si qua nollet
eo modo in manum mariti conuenire,
ea quotannis trinoctio abesset a£que
eo modo (usum) cuiusque anni in-
terrumperet. sed hoc totum ius
partim legibus sublatum est, partim
ipsa desuetudine oblitteratum est.
$ 112. Farreo in manum conue-
niunt per quoddam genus sacrificii
quod Ioui Farreo fit; in quo farreus
panis adhibetur, unde etiam confar-
reatio dicitur; conplura praeterea
huius iuris ordinandi gratia cum
certis et sollemnibus uerbis, prae-
sentibus decem testibus, aguntur et
fiunt. quod ius etiam nostris tem-
poribus in usu est; nam flamines
maiores, id est Diales Martiales
Quirinales, item reges sacrorum,
nisi ex farreatis nati non leguntur;
ac ne ipsi quidem sine confarrea-
tione sacerdotium habere possunt.
$113. Coemptione uero in manum
conueniunt per mancipationem, id
est per quandam imaginariam uen-
ditionem ; nam adhibitis non minus
quam V testibus ciuibus Romanis
puberibus, item libripende, emit is
mulierem, cuius in manum conuenit,
$ 114. Potest autem coemptionem
facere mulier non solum cum marito
suo, sed etiam cum extraneo; scili-
DE PERSONIS.
[r. $$ 108-115 &
$ 111. Possession invested the
husband with right of Hand after a
whole year of unbroken cohabita-
tion. Such annual possession ope-
rated & kind of usucspion, and
brought the wife into the family
of the husband, where it gave her
the status of a daughter. Accord-
ingly, the law of the Twelve Tables
provided that a wife who wished to
avoid subjection to the Hand of the
husband should annually absent her-
self three nights from his roof to
bar the annual usucapion: but this
proceeding is pertly abolished by
statute, partly obliterated by mere
disuse.
§ 112. Confarreation, another
mode in which subjection to Hand
originates, is a sacrifice offered to
Jupiter Farreus, in which they use
a cake of spelt, whence the cere-
mony derives its name, and various
other acts and things are done and
made in the solemnization of this
disposition with a traditional form
of words, in the presence of ten
witnesses: and this ceremony is
still in use, for the functions of the
greater flamens, that is, the famens
of Jove, of Mars, of Quirinus, and
the duties of the ritual king, can
only be performed by persons born
in marriage solemnized by confar-
reation. Nor can such persons
themselves hold a priestly office if
they are not married by confarre-
ation.
§ 113. In coemption the right of
Hand over & woman is vested in a
person to whom she is conveyed by
à mancipation or imaginary sale:
for the man purchases the woman
who comes into his power in the
presence of at least five witnesses,
citizens of Rome above the age of
puberty, besides & balance holder.
$ 114. By coemption a woman
may convey herself either to a hus-
band or to a stranger, that is to
x. $$ 108-115 5.]
cet aut matrimonii causa facta co-
emptio dicitur, aut fiduciae; quae
enim marito suo facit coemptionem,
(ut) apud eum filiae loco sit, dici-
tur matrimonii causa fecisse co-
emptionem ; quae uero alterius rei
causa facit coemptionem aut cum
uiro suo aut cum extraneo, ueluti
tutelae euitandae causa, dicitur
fiduciae causa fecisse coemptionem.
$ 115. quod est tale: siqua uelit
quos habet tutores deponere et
alium nancisci, illis auctoribus co-
emptionem facit; deinde a coemp-
tionatore remancipata ei cui ipsa
ueht, et ab eo uindicta manumissa
incipit eum habere tuforem, (a)
quo manumissa est; qui tutor
fiduciarius dicitwr, sicut inferius
apparebit.
$ 115 a. Olim etiam testamenti
faciendi gratia fiduciaréa fiebat co-
emptio; tunc enim non aliter
feminae testamenti faciendi ius ha-
bebant, exceptis quibusdam personis,
quam si coemptionem fecissent re-
mancipataeque et manumissae fuis-
sent ; sed hanc necessitatem coemp-
tionis faciendae ex auctoritate diui
Hadriani senatus remisit.
$115 b. Ifemina—— —fi|-
duciae causa cum sro suo fecertt
coempé&ionem, nibilo minus filiae loco
incipit esse ; nam si omnino quali-
bet ex causa uxor in manu uiri sit,
placuit eam filiae iura nancisci.
DE MANU.
89
say there are two forms of coemp-
tion, matrimonial and fiduciary. A
coemption with a husband in order
to acquire the status of daughter in
his house is a matrimonial coemp-
tion : a coemption for another pur-
pose, whether with a husband or
with a stranger, for liberation, for
instance, from guardianship, is a
fiduciary coemption.
§ 115. This is accomplished by
the following process: the woman
who desires to set aside her present
guardians and substitute another
makes a coemption of herself to
some one with their sanction:
thereupon the party to this coemp-
tion remancipates her to the person
intended to be substituted as guar-
dian, and this person manumits her
by fictitious vindication, and in
virtue-of this manumission becomes
her guardian, being called a fidu-
clary guardian, as will hereafter be
explained.
$ 115 a. In former times testa-
mentary capacity was acquired by
fiduciary coemption, for no woman
was competent to dispose of her
property by will, with the excep-
tion of certain persons, unless she
had made a coemption, been reman-
cipated and then manumitted: but
this necessity of coemption was
abolished by a senatusconsult made
on the motion of Hadrian.
$ 115 6. Even if à woman makes
only a fiduciary coemption with her
husband, she acquires the status of
his daughter, for it is held that
from whatever cause @ woman is in
the hand of her husband, she ac-
quires the position of his daughter.
Marital power (manus) was entirely assimilated to patria potestas.
By manus the husband had power of life and death over the wife,
Livy, 89, 18; Tac. Ann. 18, 82; and all the property of the wife,
even more absolutely than by the common law of English jurispru-
dence, vested in the husband, 2 $ 98.
90 DE PERSONIS. [1.85 108-115 5;
Manus was perhaps originally an essential accompaniment of civil
wedlock, and the patriarchs of the Roman nation could probably
not conceive of the conjugal union as disjoined from manus. Yet
at a very early period of Roman history these elements of marriage
were recognized as separable, and in later times they were almost
universally dissociated, and wedlock was unaccompanied by manus.
In a marriage celebrated without confarreation and without coemp-
tion, before the expiration of the first year of cohabitation, there
was civil wedlock without manus, and the Twelve Tables provided
a method (trinoctio abesse) by which this state could be indefinitely
prolonged : a filiusfamilias was capable of civil wedlock, but had no
manus, for marital power, like every other civil right, passed out of
the dependent husband to vest in the father; and as soon as gentile
marriages were recognised by the legislator the Romans were still
more familiarized with the spectacle of lawful matrimony without
manus. As the ages advanced the wife acquired more and more
independence; manus was almost obsolete in the time of Gaius, and
it has quite vanished from the legislation of Justinian.
Confarreation was a form of marriage which made the issue
eligible for certain high sacerdotal functions, and may therefore be
regarded as characteristic of the patrician caste. Originally it prob-
ably produced marital power in its full extent; but when Augustus,
B.C. 10, after a vacancy of seventy-five years, renewed the priesthood
of Jove (flaminium diale) he limited by statute the legal effect of
confarreation in that particular instance, § 186 ; and Tiberius, A.D.
28, extended the limitation to all future cases of confarreation.
Henceforth it only operated a change of family in respect of sacred
rites (sacra): the woman ceased to have the domestic gods and
domestic worship of her father, and took in exchange the domestic
gods and domestic worship of her husband. But in secular matters
her family was unchanged: she remained, if filiafamilias, subject to
patria potestas, and did not become quasi filiafamilias in the house-
hold of her husband: her old ties of agnation in her father’s family
were not snapped, and no new ties of agnation in her husband’s
family were acquired. Divorce (diffarreatio) was almost impos-
sible, and this indissolubility of the connection contributed to the
unpopularity of confarreatio, Moreover, it was a religious cere-
monial, requiring the presence of the pontifex maximus and flamen
dialis, and as such it vanished-with vanishing paganism. The ten
witnesses apparently represented the ten curie of which the tribe
1. §§ 108-115 5. DE MANU. $i
was composed, or the ten gentes of which the curia was composed,
or, if the decimal division continued further, the ten families of
which the gens was composed.
The exact nature of Coemption, in consequence of the defective
state of the Veronese manuscript, must remain a mystery. Coemp-
tion was a form of mancipation, $ 118, but in virtue of the provision
of the Twelve Tables, Cum nexum faxit mancipiumque, uti lingua
nuncupassit, ita jus esto, the nature of every mancipation depended
on the mancipii lex, the accompanying nuncupation or verbal de-
claration of its condition, intentions, purposes; as in English cons
veyancing the nature of a grant is limited and determined by the
habendum and tenendum of the deed. We are informed that in
eoemption, the formula was not the same as in other mancipations,
§ 123, but we are not informed what it was. Even in Cicero's
time many advocates were ignorant of the legal effect of a coemp-
tion because they were ignorant of the precise terms of the formula
in which it was concluded, De Orat. 1, 56. The word itself may
suggest a conjecture that it was a conveyance of the husband to
the wife as well as of the wife to the husband ; and this is sup-
ported by Servius on Georgics, 1, 34, and Isidorus, 5, 24, no great
authorities, but who quoted apparently from Ulpian: ‘An ancient
nuptial form wherein husband and wife made a mutual purchase, to
bar the inference that the wife became a slave,” Plutarch informs
us that the wife asserted her equality by the terms, Ubi tu Caius,
ego Caia, Quaest. Rom. 28: ‘Where thou art master, I am
mistress,’ Boethius on Cicero Topica, 8, 14, quoting from Ulpian,
says: ‘The man and woman interrogated one another. He asked
her if she wished to be mother of his household; she answered,
Yes. She asked him if he wished to be father of her household ;
he answered, Yes. And thus the woman passed into the Hand of
the man, and was called the mother of his household, with the status
of filiafamilias! According to Cicero, the wife was only called
materfamilias when subject to Hand: Genus est uxor, ejus duae
formae, una matrumfamilias, quae in manum convenerant, altera
earum quae tantummodo uxores habentur, Top. 4. Gellius says the
same, 18, 6: ‘Competent interpreters of the ancient language say
that materfamiliae was a title only given to a wife in the hand and
mancipation of her husband, or of the person who held her husband
m hand and mancipation, as she was not only a wife, but a member
of the family of the husband, having acquired therein the status of
92 DE PERSONIS. [1. $$ 108-115 5.
self-successor.’? Boethius further limits the title to a wife who has
become subject to manus by coemption: Quae autem in manum
per coemptionem convenerant, hae matresfamilias vocabantur, quae
vero usu et farreatione minime, ibid. However this may have
been, in one sense the name was a misnomer, for a wife subject to
hand was not sui juris (materfamilias), but alieni juris (filiafamilias) :
and that materfamilias denoted a woman sui juris, whether married
or unmarried, as opposed to a filiafamilias or woman alieni juris,
appears from Ulpian: Sui juris sunt familiarum suarum principes,
id est paterfamilias itemque materfamilias, 4, 6.
If the wife was subject to the power of her father she required
his consent (auctoritas) before she could make a coemption with her
husband. If the wife was independent of parental control, she
required the sanction of her guardians, that is, her agnates.
Coemption was sometimes employed for other purposes than
matrimony, and was then called fiduciary coemption. Sometimes
the intention was to extinguish the obligation of onerous sacred
' rites attached to the estate of an heiress: Jure consultorum ingenio
senes ad coemptiones faciendas interimendorum sacrorum causa
reperti sunt, Cie. Pro Murena, 12. ‘Juristic ingenuity invented
coemptions with aged men for extinguishing sacred rites Savigny
gives the following conjectural explanation of the process. The
obligation to the sacra belonged to the Quiritary ownership of the
universitas of the woman's estate. This, by the effect of coemption,
vested in the coemptionator, an old man approaching dissolution
(senex coemptionalis), with whom a fictitious marriage was con-
tracted, and who took the estate as universal successor. He
forthwith dismissed the woman from his manus by remancipation
and manumission: and then, according to covenant, restored to her
the estate in portions; that is, released from the ritual obligations,
which only attached to the universitas. On his death, as Quiritary
owner of the empty universitas, the obligation to the rites was extin-
guished: for the succession (hereditas) to the coemptionator did not
pass to the woman, as she by remancipation had ceased to be
[such was the hypothesis of Savigny before the discovery of Gaius :
instructed by Gaius we must rather say, as mere fiduciary coemp-
tion had not the effect of making her] his filiafamilias and sua
heres. The phrase senex coemptionalis denotes a slave. From
which it may be inferred that a slave, useless for any other pur-
pose, and therefore very cheap, was sometimes bought and manu-
1.§§ 108-115 8.] . DE MANU. 93
mitted to serve as coemptionator. In such a case the whole
transaction would be very inexpensive, if not very decorous, This
mode of getting rid of sacred rites is compared by Ihering, $ 58,
with the institution of & slave as successor to bear the infamy of
bankruptcy instead of a bankrupt testator, 2 § 154. Universal
succession was an institution which Roman law only admitted in
certain cases: as operated by contract it was only admitted in case
of Manus and Adoptio. If universal succession was required for
the purpose of extinguishing the obligation to sacred rites attaching
to the estate of an heiress, we might have supposed that Adrogatio
would have been a less offensive mockery than a fictitious marriage
(fiduciary coemption); adrogatio, however, was inapplicable, because,
a8 we have seen, up to a late period of Roman law women were in-
capable of being adrogated. Moreover, the Pontifices, who had
a veto on adrogations, were not likely to lend themselves readily to
the extinction of sacred rites.
At other time Coemption was employed to enable a woman to
select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12. ‘There are
many wise legal provisions that juristic ingenuity has defeated and
perverted. All women on account of their weakness of judgment
were placed by our ancestors under a guardian’s control: jurists in-
vented a kind of guardian subject to female dictation.’
The latest employment of Coemption enabled a woman to break
the ties of agnation and thus acquire testamentary capacity, § 115 a.
The coemptionator (party to the coemption) in virtue of the manus
thereby acquired was able, and by a fiducia or trust was bound, to
sell the woman into bondage as if she were filiafamilias: accord-
ingly he remancipated her to a third person, who by manumitting
her in accordance with another fiducia became her patron, and as
patron, in accordance with the Twelve Tables, §§ 165, 166, her statu-
tory guardian, and, as having acted under a fiducia, her fiduciary
guardian, § 115. It may occur to us that as coemptio required
the sanction of a father or guardian, this process could not be of
much use in getting rid of a guardian or defeating the claims of
agnatic guardians to a woman’s intestate succession; but it must
be remembered that the nearest agnate, who alone was heir and
guardian, was a variable person, and that a given nearest agnate
might be not indisposed to allow a woman to acquire the free dis-
position of her property and to defeat the claims of those who, after
his death, would be nearest agnates and presumptive heirs. At all
94 DE PERSONIS. [r.$$ 108-115 5.
events, however indisposed the guardian might be to such a course,
& period at last arrived when the auctoritas of the agnatic guardian,
though still required as a formality, could be extorted, 1f not yielded
yoluntarily, by appeal to the magistrate, § 190.
Agnatic guardianship of female wards was abolished by a lex
Claudia, § 171, and thus the woman would be free from the control
of an interested guardian in the disposition of her property during
her lifetime. She would still however be a mere usufructuary or
tenant for life, being devoid of the power of testation. For when
wills could be only executed in the comitia, 2 § 101, she would
be excluded from testation, as well as from adrogation, by ex-
clusion from the comitia ; and after the introduction of the manci-
patory will she was still deprived of testamentifactio by her agnates’
indefeasible claims to her reversion. Agnation itself, however,
was defeasible by means of coemptio and remancipatio and the
consequent capitis minutio; and when the auctoritas of the agnates
for these proceedings could be extorted, § 190, the woman had
practically acquired power of testation, although its exercise was
hampered by a tedious formality, which was not abolished by the
emperor Claudius when he abolished agnatic guardianship. It was
not till the senatusconsult of Hadrian that the rupture of the ties
of agnation by means of coemptio ceased to be necessary to the
validity of a woman's will, § 115 a; though, as already suggested,
it had probably been a mere formality (the woman having power to
extort at pleasure the auctoritas of the agnatic guardian) long before
the time of Claudius.
§ 114. Fiducia was a declaration of the conditions, purposes, and
trusts of a mancipation. Besides its use in coemption, it was
employed, as we shall see presently, in emancipation and adoption,
and was the earliest form of constituting the contracts of deposit,
and mortgage, 2,§ 59. 3, §§ 90, 91 Comm.
Fiducia must not be identified with nuneupatio. Nuncupatio
forms an integral part of Mancipatio, and with it is a title of
civil law, and ground to support an actio stricti juris. Fiducia
never coalesces with Mancipatio, but remains a separate adjunct,
forming a title of gentile law, and ground to support a bonae
fidei actio. Herein Mancipatio is contrasted with Tradition and
the dispositions of natural law. Conventions accompanying. Tra.
dition unite with it, and form a single consolidated disposition ;
and the pacts annexed (pacta adjecta) to any contract of natural
1 §§116-123.] DE MANCIPIO, 95
law (venditio, conductio, mandatum, &c.) become integral parts
thereof, and are enforced by the action brought on the prin-
eipal contract. Stipulatio, as a civil disposition, seems to have
originally resembled Mancipation in this respect: at least it was a
late period of the law when the rule was clearly established that:
Pacta incontinenti facta stipulationi inesse creduntur, D. 12, 1, 40,
i.e, Pacts contemporaneous with a stipulation are deemed to be
portions of the stipulation or to have acquired the efficacy of stipu-
lations. Savigny, § 268. It is true that a Pactum adjectum
respecting interest and annexed to the gentile disposition Mutuum
could not be enforced by an action brought upon the Mutuum :
but that was a consequence of the nature of the action (condictio
certi) whereby Mutuum was enforced, and which could not embrace
any sum beyond the original subject of the Mutuum.
DE MANCIPIO,
$ 116. Superest ut exponamus,
nae in mancipio sint.
$ 117. Omnes igitur liberorum
personae, siue masculini, siue femi-
mini sexus, quae in potestate paren-
tis sunt, mancipari ab hoc eodem
modo possunt, quo etiam serui man-
cipari nt.
$ 118. Idem iuris est in earum
personis quae in manu sunt ; | —
coemptionatoribus eodem modo pos-
sunt | —— ——apud coemptionatorem
filiae loco sit———nupta sit,
nihilo minus etiam quae ei nupta
non sit nec ob id filiae loco sit, ab
€o mancipari possit,
$118 a. Plerumque (uero tum)
solum et a parentibus et a coemp-
tionatoribus mancipantur, cum
uelint parentes coemptionatoresque
(et) suo iure eas personas dimit-
tere, sicut. inferius euidentius ap-
parebit.
§ 116. It remains to examine
what it is to be held in mancipation.
§ 117. All children, male or fe-
male, in the power of their father
are liable to be mancipated by their
father just as his slaves may be
mancipated.
$ 118. A woman in the hand
is subject to the same mode of
alienation, and may be mancipated
by the person who has acquired her
by coemption just asa daughter may
be mancipated by her father: and
although the acquirer by coemption
has not the power of a father over
her unless he is her husband, never-
theless, even when he is not her
husband, and therefore has not the
status of a father, he can dispose of
her by mancipation.
§ 118 a. Almost the sole occasion
of mancipation by a parent or ac-
quirer by coemption is when the
parent or acquirer by coemption
designs to liberate the person man-
cipated from his lawful control, as
will presently be more fully ex-
plained,
96
$119. Est autem mancipatio, ut
Supra quoque diximus, imaginaria
quaedam uenditio: quod et ipsum ius
proprium ciuium Romanorum est;
eaque res ita agitur: adhibitis non
minus quam quinque testibus ciui-
bus Romanis puberibus et prae-
terea alio eiusdem condicionis, qui
libram aeneam teneat, qui appella-
tur libripens, is qui mancipio accj-
pit, aes tenens ita dicit HVNC EGO
HOMINEM EX IVRE QVIBITIVM MEVM
ESSE AIO ISQVE MIHI EMPTVS ESTO
HOC AERS AENEAQVE LIBRA ; deinde '
aere percutit libram idque aes dat
ei a quo mancipio accipit quasi
preti loco.
$ 120. Eo modo et seruiles et
liberae personae mancipantur; ani-
malia quoque quae mancipi sunt,
quo in numero habentur boues, equi,
muli, asini; item praedia tam ur-
bana quam rustica quae et ipsa
mancipti sunt, qualia sunt Italica,
eodem modo solent mancipari.
$ 121. In eo solo praediorum
mancipatio & ceterorum mancipa-
tione differt, quod personae seruiles
et liberae, item animalia quae man-
cipii sunt, nisi in praesentia sint,
mancipari non possunt; adeo qui-
dem, ut eum (gwi) mancipio ac-
cipit, ad prehendere id ipsum quod et
mancipio datur, necesse sit; unde
etiam mancipatio dicitur, quia manu
res capitur; praedia uero absentia
solent mancipari.
$ 122. Ideo autem aes et libra
adhibetur, quia olim aereis tantum
nummis utebantur, et erant asses,
dupundti, semisses, quadrantes, nec
ullus aureus uel argenteus nummus
in usu erat, sicut ex lege Xii tabu-
larum intellegere possumus ; eorum-
DE PERSONIS.
[z. $$ 116-123-
§ 119. Mancipation, as before
stated, is an imaginary sale which
is only within the competence of
Roman citizens, and consists in the
following process: in the presence
of not fewer than five witnesses,
citizens of Rome above the age of
puberty, and another person of the
same condition, who holds a bronze
balance in his hands and is called
the balance holder, the alienee hold-
ing a& bronze ingot in his hand, pro-
nounces the following words: Tuis
MAN I CLAIM AS BELONGING TO ME
BY RIGHT QUIRITARY AND BE HE
(or, HK I8) PURCHASED TO ME BY
THIS INGOT AND THIS SCALE OF
BRONZE. He then strikes the scale
with the ingot, which he delivers to
the mancipator as by way of pur-
chase money.
$ 120. By this formality both
slaves and free persons may be
mancipated, and also such animals
as are mancipable, namely, oxen,
horses, mules, and asses: immov-
ables also, urban and rustic, if sub-
ject to quiritary dominion, such as
Italic lands and houses, are aliened
by the same outward form.
§ 121. The only point wherein
the mancipation of immovables dif-
fers from the mancipation of mov-
ables is this, that persons, whether
slaves or free, and animals that are
mancipable, must be present to be
mancipated : indeed the alienee must
grasp the movable to be conveyed
with his hand, and from this manual
prehension the name of mancipa-
tion is derived; whereas immov-
ables need not be present to be
mancipated.
§ 122. The reason of using a
bronze ingot and a weighing scale
is the fact that bronze was the only
metal used in the ancient currency,
which consisted of pieces called the
as, the double as, the half as, the
quarter as, and that gold and silver
1. $$116-123.]
que nummorum uis et potestas non
| in numero erat sed in pondere
—— as|ses librales erant, et du-
pundii ——|; unde etiam dupun-
dius dictus est quasi duo pondo,
quod nomen adhuc in usu retinetur.
semisses quoque et quadrantes pro
rata scilicet portione ad pondus ex-
aminati erant.— qui daba: olim |
pecuniam, non numerabat eam, sed
appendebat ; unde serui quibus per-
mittitur administratio pe|cuniae,
dispensatores appellati sunt et —— |
$ 123. coemptio|
quidem quae coem|ptionem fac
— seruilem condicijonem a——|
— mancipati mancipataeue seruo-
rum loco con|stituuntur, adeo qui-
dem, ut ab eo cuius in mancipio
sunt, neque hereditatem neque le-
gata aliter capere possent, quam
(si) simul eodem testamento liberi
esse iubeantur, sicut iuris est in
persona seruorum. sed differentiae
ratio manifesta est, cum a parenti-
bus et a coemptionatoribus isdem
uerbis mancipio accipiantwr, quibus
serui; quod non similiter fit in
coemptione.
DE MANCIPIO.
97
were not used as media of exchange,
as appears by the law of the Twelve
Tables : and the value of the pieces
was not measured by number but
by weight [i.e. they were not legal
tender]. Thus the as was a pound
of bronze, the double as two pounds,
whence its name (dupondius), which
still survives; while the half as
and quarter as were masses de-
fined by weighing those respective
fractions of & pound. Accord-
ingly, money payments were not
made by tale, but by weight, whence
slaves entrusted with pecuniary
transactions have been called dis-
pensators.
§ 123. If it is asked in what
respect coemptive conveyance differs
from mancipation, the answer is
this, that coemption does not re-
duce to a servile condition, whereas
mancipation reduces to 80 com-
pletely & servile condition that a
person held in mancipation cannot
take as heir or legatee under the
will of the person to whom he is
mancipated, unless thereby at the
same time enfranchised, thus labour-
ing under the same incapacity as a
slave: the reason too of the differ-
ence is plain, as the form of words
employed in mancipation by a pa-
rent or previous acquirer by coemp-
tion is ‘identical with that used
in the mancipation of slaves, but
it is not so in coemptive convey-
ance. °
In what respects did domestic bondage (mancipium or mancipii
causa) differ from slavery (servitus)? Bondage was an institute of
Civil law, slavery an institute of the law of nations, $52. Bondage
was the result of mancipation by a parent or coemptionator, and
only a Roman citizen was capable of becoming a bondsman.
The proprietor has possession of the slave, the lord has no pos-
session of the bondsman, 2, § 90. The bondsman was civis Ro-
manus, though what became of his political capacities during his
bondage is uncertain ; and he was liber, though alieni juris; he was
H
98 | DE PERSONIS. [r. $$ 116-123.
free in respect of the rest of the world, he was only a bondsman in
respect of his domestic superior (paterfamilias). Hence the status
of mancipium was relative; a man could only be mancipium in
relation to a given domestic lord: whereas the status of slavery was
absolute; a man might be a slave without a proprietor (servus sine
domino): for instance, a person condemned for a capital crime, who
was called the slave of punishment (servus poenae, Inst. 1, 12, 3),
or a slave abandoned (derelictus) by his proprietor. Accordingly,
falling into servitus was maxima capitis diminutio, while falling
into mancipii causa was minima capitis diminutio, § 162. The
bondsman had no proprietary rights against his superior, 2, § 86,
but he had some of the primordial rights; for instance, he could
sue his superior for outrage, § 141; and he was capable of civil
wedlock and could beget Roman citizens, though during his bond-
age his patria potestas was in abeyance, § 135. Release from
bondage, as from slavery, was by manumission, § 188, and the
manumitter became the patron of the released person, $$ 166 a,
195 a, but the manumitted bondsman became ingenuus, whereas the
manumitted slave became libertinus. Bondage did not exist in the
time of Justinian.
$ 119. The libripens must not be dumb, Ulpian, 20, 7: probably
because he had to utter the formula preserved by Festus, Raudus-
culo libram ferito, i.e. to invite the emptor to strike the scale with
the ingot, in order to show by the ring that the metal was genuine.
Ihering, $ 46.
$ 120. Under the first emperors the body of the Roman world
consisted of three members, the imperial city, Rome, Italy, and the
provinces, the two former being highly privileged in comparison
with the third. After the Social War all Italy had acquired the
Roman franchise, but Italic soil was not a purely local appellation,
as jus Italicum was conceded to many provincial cities. Jus Itali-
cum, or Italian privileges, implied (1) a free municipal constitution
with elective magistrates (generally called duumviri juri dicundo)
possessed of independent jurisdiction; and, what was still more
important, (2) immunity from direct taxation, whether in the form
of capitation tax (tributum capitis), imposed on all who were not
holders of land (tributarii), or in the form of land tax (tributum
agri), imposed on holders of land (possessores), and paid in provinces
of the people to the aerarium under the name of stipendium, in
provinces of the emperor to the fiscus under the name of tributum,
1. § 124-131.] Q. M. IUS POTESTATIS SOLVATUR. 99
2, $21. Italie soil was (3) subject to Quiritary ownership (do-
minium ex jure Quiritium) and acquirable and transferable by
usucapion and mancipation. Under the later emperors, as early as
the time of Diocletian, the Roman world was equalized, not by the
elevation of the depressed members, but by depression of those
formerly favoured : Italy was shorn of her privileges, and all the
empire became provincial.
$ 122. Chemical analysis shows that the aes of which Roman
coms consisted was bronze, a mixture of copper (cuprum), tin, and
lead. (English bronze is an alloy composed of ninety-five parts of
copper, four parts of tin, and one part of zinc.] Brass, a mixture of
copper and calamine (cadmeia) or zinc, was called orichaleum.
Silver currency was first introduced B.c. 269. The primitive
system of currency was everywhere currency by weight, and every
system of coinage was originally identical with a system of weights,
the unit of value being the unit of weight of some selected metal
(Jevons, Money, ch. 9). The pieces of which a currency by weight
consists are not properly coins, for coins are ingots of which the
weight and fineness are certified by the integrity of the designs im-
pressed upon the surfaces of the metal (ibid. ch. 7). Money is
legal tender. (Mill, Pol. Econ. 12, 7.) Legal tender is that
which must be tendered by the debtor and accepted by the creditor
in discharge of an obligation; e.g. in England silver coin is
a legal tender only to the amount of forty shillings in any one pay-
ment, bronze coins are a legal tender only to the aggregate amount
of one shilling. Bank of England notes are a legal tender every-
where in England but at the bank, i.e. are there convertible into
gold.
§ 123, As coemptio was a form of mancipatio, how does it happen
that manus, the result of coemptio, differs from mancipium, the
result of mancipatio? Because, Gaius answers, the formula of
words used in the mancipatio that entered into coemptio was speci-
fically different from the formula employed on other occasions of
mancipation. |
QUIBUS MODIS.IUS POTESTATIS SOLVATUR.
$ 124. Videamus nunc quomodo $ 124. Let us now examine the
hi qui alieno iuri subiecti sunt, eo modes whereby persons dependent
jure liberentur, on a superior are freed frum their
dependence,
H2
100
$ 125. Ac prius de his dispicia-
mus qui in potestate sunt.
$ 126. Et quidem seru? quemad-
modum potestate liberentur, ex his
intellegere possumus quae de seruis
manumittendis swperius exposui-
mus.
$ 127. Hi uero qui $n potestate
parentis sunt, mortuo eo sui uris
Jiunt. sed hoo distinctionem reci-
pit; nam mortuo patre sane omni
modo filà filiaeue sui iuris efficiun-
tur; mortuo uero auo non omni
modo mepotes meptesue sui turis
fiunt, sed ita, 81 post mortem aut in
patris sui potestatem recasuri non
sunt. itaque si moriente auo pater
eorum et uiuat et in potestate patris
(sui) fuerit, tunc post obitum aut
in patris sui potestate fiunt; si
uero is, quo tempore auus moritur,
aut iam moréuus est aut exiit de
potestate ( patris, tunc hi, quia in
potestatem) eius cadere non pos-
sunt, sul turis fiunt.
$128. Cum autem is cui ob
aliquod maleficium ex lege Corne-
lia aqua et igni interdicitur, ciui-
tatem Romanam amittat, sequitur
ut, quia eo modo ex numero ciuium
Romanorum tollitur, proinde ac
mortuo eo desinant liberi in potes-
tate eius esse; nec enim ratio pa-
titur, ut peregrinae condicionis
homo ciuem Romanum in potes-
tate habeat. pari ratione et si ei
qui in potestate parentis sit aqua
et igni interdictum fuerit, desinit
in potestate parentis esse, quia
seque ratio non patitur, ut pere-
grinae condicionis homo in potes-
tate sit ciuis Romani parentis.
$ 129. Quodsi ab hostibus captus
fuerit parens, quamuis seruws hos-
tium fiat, tamen pendet ius libe-
rorum propter ius postliminti, quo
hi qui ab hostibus capti sunt, si
DE PERSONIS.
[1. $$ 124-131.
$ 125. And, first, let us consider
persons subject to power.
$126. The mode of liberating
slaves from their proprietor's power
was expounded above, when we
treated of servile manumission.
$ 127. Children under paternal
power become independent at the
parent's desth, subject, however, to
this reservation: the death of a
father always releases his sons and
daughters from dependence: the
death of a grandfather only releases
his grandchildren from dependence,
provided that it does not subject
them to the power of their father:
for if at the death of the grand-
father the father is alive and in his
power, the grandchildren, after the
graudfather's death,are inthe power
of the father; but if at the time of
the grandfather's death the father is
dead or not subject to the grand-
father, the grandchildren will not
fall under his power, but become
independent.
$ 128. As interdiction from fire
and water for an offence against
the Cornelian law involves loss of
citizenship, such removal of a man
from the list of Roman citizens
operates, like his death, to liberate
his children from his power, for it
is inconsistent with civil law that
an alien should exercise parental
power.over a citizen of Rome: con-
versely, the interdiction from fire
and water of a person subject to
parental powerterminatesthe power
of the parent, because it is a simi-
lar inconsistency that a person of
alien status should be subject to
the parental power of a Roman
citizen.
$129. Though the hostile capture
of the parent makes him a slave of
the enemy, the status of his children
is suspended by his right of retro-
spective rehabilitation, whereby on
r.$$124—131.] Q. M. IUS POTESTATIS SOLVATUR.
reuersi fuerint, omnia pristina iura
recipiunt ; itaque reuersus habebit
liberos in potestate. si uero illic
mortesus sit, erunt quidem liberi
tul iuris; sed utrum ex hoc tem-
pore quo morteus est apud hostes
parens, an ex illo quo ab hostibus
captus est, dubitari potest. ipse
quoque filius.neposue si ab hostibus
captus fuerit, similiter dicemus
propter ius postliminti potestatem
quoque parentis in suspenso esse.
$130. Praeterea exeunt liberi
uirilis sexus de parentis potestate,
ti flamines Diales inaugurentur, et
feminini sexus, si uirgines Vestales
capiantur.
$131. Olim quoque, quo tem-
pore populus Romanus in Latinas
regiones colonias deducebat, qui
iussu parentis in coloniam Latinam
nomen dedissent, desinebant in po-
testate parentis esse, quia efficeren-
tur alterius ciuitatis ciues.
10f
escape from captivity a man recovers
all former rights: accordingly, if
the father returns he will have his
children in his power; if he dies
in captivity his children will be in-
dependent, but whether their in-
dependence dates from the death
of the parent or from his capture
by the enemy may be disputed.
Conversely, if a son or grandson
is captured by the enemy, his
right of subsequent recovery of
status causes the power of his
ascendent to be only provisionally
suspended.
§ 130. Further, a son is liberated
from parental power by his inaugu-
ration as flamen of Jove, a daughter
by her selection for the office of
Vestal virgin.
§ 131. Formerly, too, when Rome
used to send colonies into the Latin
territory, a son who by his parents’
order enrolled his name in a colony
ceased to be under parental power,
since he was made a citizen of an-
other state.
§ 128. Relegation was a milder form of punishment than de-
portation, and involved no loss of civitas nor of domestic nights,
Inst. 1, 12, 2.
§ 129. Postliminium is the recovery of rights by a person re-
turned from captivity, or the recovery of rights over a person or
thing recovered from hostile possession. The word postliminium
seems to be derived from pot, the root of potestas or possessio,
and limen or stlimen = ligamen, and therefore would denote the
bridging over of the interval of captivity by a fiction of continued
capacity or possession, as a doorway is bridged over by a lintel
§ 130. In imitation of the ancient law Justinian enacted that
eerta dignities should release from patria potestas; for instance,
patriciatus and the episcopate, the latter because it made a man
spiritual father of all mankind, Novella, 81.
. $181. The Latini or members of coloniae Latinae were an inter-
mediate class between cives and peregrini. 'They differed from
102 DE PERSONIS. [r. $$ 132-136.
peregrini in that they had commercium, i.e. capacity of Quiritary
ownership with its incidents, and they differed from cives in not
having connubium, and consequently being incapable of patria
potestas, Cie. Pro Caecina, 35, Cf. $ 22 comm. A Roman citizen
eould only become a Latin with his own consent. Qui cives
Romani in colonias Latinas proficiscebantur, fieri non poterant
Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30.
‘Roman citizens who went to Latin colonies did not lose their
citizenship without voluntary enrolment among the colonists.’ See
also Cic. Pro Balbo, 11.
$ 132. Praeterea emancipatione
desinunt liberi in potestate paren-
tum esse. sed filius quidem tribus
mancipationibus, ceteri uero liberi,
siue masculin] sexus siue feminini,
una mancipatione exeun de paren-
tum potestate; lex enim XII tabu-
larum tantum in persona fili de
tribus mancipationibus loquitur his
uerbis 8I PATER FILIVM (TER)
VENVM DVIT, A PATRE FILIVS LIBER
ESTO. eaque res ita agitur: man-
eipat pater filium alicui; is eum
uindicta manumittit; eo facto re-
uertitur in potestatem patris; is eum
iterum mancipat uel eidem uel alii
(sed in usu est eidem mancipari)
isque eum postea similiter uindicta
manumittit ; eo facto rursus in po-
testatem patiis reuertitur; tertio
pater eum mancipat uel eidem uel
alii (sed hoc in usu est, ut eidcm
mancipetur), eaque mancipatione de-
sini ?n potestate patris esse, e£ amsi
nondum manumissus sit sed adhuc
in causa mancipü. si —| |
missi —|——-
(8 uersus in C legi nequeunt.)
§ 132. Emancipation also libe-
rates children from the power of
the parent, a son being liberated
by three mancipations, other issue,
male or female, by a single manci-
pation; for the law of the Twelve
Tables only mentions three manci-
pations in the case of the son, which
it does in the following terms: IF a
FATHER SELL A SON THREE TIMES,
THE SON SHALL BE FREE FROM THE
FATHER. The ceremony is as follows:
thefather mancipates his son to some
one ; tle alienee manumits him by
fictitious vindication, whereupon he
reverts into the power of his father ;
the father again mancipates him to
the same er a different alienee,
usually to the same, who again
manumits him by fictitious vindica-
tion, whereupon he reverts a second
time into the power of his father ;
the father then mancipates him a
third time to the same or a different,
alienee, usually to the same, and
by this third mancipation the son
ceases to be in the power of the
father even before manumission,
while still in the status of a person
held in mancipation. [The alienee
or fiduciary father should then
remancipate him to the natural
father, in order that thereupon the
natural father by manumitting him
may acquire the rights of patron
instead of the fiduciary father. |
(Epit. 1, 6, 3.)
1$$132-136.] Q. M.IUS POTESTATIS SOLVATUR.
$132 a.
bonis liberti|
(3 uersus in C legi nequeunt.)
feminae una | manci-
patione exeunt de patris potestate
—! manumissae fuerint s—|
—|-—|
| —— patrono in
$ 133. —— Admonendi autem
sumus liberum esse arbitrium et qui
fium et ex eo nepotem in potestate
habelnt, filium quidcm de potestate
dimittere, nepotem uero in potestate
retinere ; uel ex diuerso filiwn qui-
dem in potestate retinere, nepotem
uero manumittere, uel omnes sui
turts efficere. eadem et de prone-
pote dicta esse intellegemus.
§ 134. | et duae
intercedentes manumissiones pro-
inde fiunt, ac fieri solent, cum ita
eum peter de potestate dimittit, «t
sui iuris efficiatur. deinde aut
petri remancipatur, et ab eo is qui
adoptat, uindicat apud praetorem
filum suum esse, et illo contra non
uindicante (a) praetore uindicanti
filius addicitur; aut non remanci-
patur patii sed ab eo uindicat is qui
adoptat, apud quem tn tertia manci-
patione est; sed sane commodius
est patri remancipari. In ceteris
uero liberorum personis, seu mas-
culini seu feminini sexus, una scl-
licet mancipatio sufficit, et aut re-
mancipantur parenti aut non re-
mancipantur. Eadem et in pro-
uncis apud praesidem prouinciae
solent fieri.
103
$ 132a. A manumitter of a free
person from the state of mancipium
has the same rights to the suc-
cession of his property as a patron
has in respect of the property of
his freedman. Women and male
grandsons by a son pass out of the
power of their father or grand-
father after one mancipation ; but
unless they are remancipated by
their fiduciary father, and manu-
mitted by their natural father, the
latter has no rights of succession
to their property.
§ 133. A grandfather who has
both a son, and by his son a grand-
son, in his power, may either release
his son from his power and retain
the grandson, or retain the son and
manumit the grandson, or emanci-
pate both son and grandson; and
a great grandfather has a similar
latitude of choice.
§ 134. A father is also divested
of power over his children by giving
them in adoption. To give a son
in adoption, the first stage is three
mancipations and two manumissions,
as in emancipation; after this the
son is either remancipated to the
father, and by the adopter claimed
as son from him by vindication be-
fore the praetor, and in default of
counterclaim by the natural father
is awarded by the praetor to the
adoptive father as his son; or with-
out remancipation to the natural
father is directly claimed by the
adoptive father by vindication from
the alienee of the third mancipation
(fiduciary father); but it is more
convenient to interpose a remanci-
pation to the natural father. In the
case of other issue, male or female,
a single mancipation suffices, with
or without remancipation to the
natural father. In the provinces a
similar ceremony can be performed
before the president of the province.
104
$135. Qui ex filio semel iterum-
ue mancipato conceptus est, licet
post tertiam mancipationem patris
sui nascatur, tamen in aui potes-
tate est, et ideo ab eo et emanci-
pari et in adoptionem dari potest.
- At is qui ex eo filio conceptus est
qui in tertia mancipatione est, non
nascitur in aui potestate. sed eum
Labeo quidem existimat tn eiusdem
mancipio esse cuius et pater sit;
utimur autem hoc iure, ut quam-
diu pater eius in mancipio sit, pen-
deat ius eius; et siquidem pater
eius ex mancipatione manumissus
erit, cadat in eius potestatem; si
uero is dum in mancipio sit, de-
cesserit, sui iuris fiat.
$135 a. | Eadem scilicet |
nam | ut supra diximus,
quod in filio faciunt tres manci|pa-
tiones, hoc, facit una mancipatio in
nepote.
§ 136. | ——|——4
Maximi et | Tuberonis cautum est,
ut haec quod ad sacra tantum uidea-
tur in manu esse, quod uero ad ce-
teras causas proinde habeatur, af-
que si in manum non conuenisset.|
potestate parentis
liberantur; nec in|terest an in uiri
sul manu sint an extranei, quamuis
hae solae loco filiarum habeantur,
quae in uiri ma|nu sunt.
DE PERSONIS.
[1. $$ 182-136.
$ 135. A grandson begotten
after the first or second mancipa-
tion of the sop, though born after
the third mancipation, is subject
to the power of the grandfather,
and may by him be given in adop-
tion or emancipated: a grandson
begotten after the third mancipa-
tion is not born in the power of
the grandfather, but, according to
Labeo, is born in mancipation to the
person to whom his father is manci-
pated. "The rule, however, which
has obtained acceptance is, that so
long as the father is in mancipa-
tion the status of the child is in
suspension, and if the father is
manumitted the child falls under
his power; if the father dies in
mancipation the child becomes in-
dependent.
$ 135 a. The rule is the same in
the case of a child begotten of a
grandson who has been once man-
cipated, but not yet manumitted ;
for, as before mentioned, the result
of three mancipations of the son is
obtained by a single mancipation of
the grandson.
$136. A wife subjected to the
hand of a husband by confarreation
is not thereby freed from the power
of her father; and this is declared
by the senatusconsult of the consuls
Maximus and Tubero respecting
the priestess of Jove, which limits
the marital hand to the sphere of
sacred rights, and declares the status
of the wife unaffected in other re-
spects by subjection to the hand of
the husband. Subjection to hand
by coemption liberates from the
power of the parent, and it is im-
material whether it is a coemption
subjecting the woman to the hand
of a husband or to the hand of
& stranger, although the status
of quasi daughter only belongs
to a woman in the hand of a
husband.
1. §§ 132-136.] Q. M. IUS POTESTATIS SOLVATUR. I05
$182. The epitomator of Gaius in the code of Alarie 2 mentions
as present at an emancipation, besides the five witnesses and libripens,
a seventh person whom he calls antestatus, who is also mentioned in
the bronze tablet referred to in the remarks on pignus and fiducia,
Book 3, §§ 90, 91 comm.
The vindicta or wand used in manumission, as already stated, was -
the rod or verge symbolizing a lance carried by the parties in a real
action. The status of freedom (libertas) whether as opposed to
slavery or to bondage (mancipii causa) was a real right (jus in rem),
and therefore a subject to be contested in a vindicatio, Manumis-
sion by vindicta was a collusive vindicatio, in other words, an in
jure cessio.
The epitomator of Gaius calls the person to whom the son was
mancipated pater fiduciarius, which implies that the mancipation
was accompanied by a fiducia or declaration of trust. The trust
would be that the pater fiduciarius should make default or confess
in the subsequent vindicatio.
$184. Assuming that in adoption, as in emancipation, the person
to whom the son was mancipated was called pater fiduciarius, we
find in adoption three fathers in the field, pater naturalis, pater
fiduciarius, and pater adoptivus. Remancipation to the natural father
added a stage to the process; but is described as more convenient,
because it reduced the number of actors from three to two; for it
enabled the part of pater fiduciarius to be played by pater adoptivus.
It appears from § 135 that though the status of bondage was
formal or fictitious, yet to give an air of reality to the drama, the
status was made to have a certain duration. So when a prince is
advanced from the rank of private to that of general, a certain
interval is interposed between the intermediate promotions for the
sake of decorum, though, the whole proceeding being unreal, all the
steps, if the authorities were so disposed, might be compressed into
asingle day. Ihering, § 46.
The status of paterfamilias or of filiusfamilias being, like other
kinds of status, a real right, the clnim of a person as filiusfamilias
was a matter to be contested in a real action or vindicatio. This
would seem the more obvious to the early jurists, as they probably
drew no distinction between patria potestas and dominica potestas,
Le. between paternal power and absolute proprietorship. This
claim was sometimes a matter of contentious (not voluntary) juris-
diction, ie. of genuine litigation. Per hanc autem actionem liberae
106 DE PERSONIS, [1. $$ 137-141,
personae quàe sunt juris nostri, utputa liberi qui sunt in potestate,
non petuntur . . . . nisi forte adjecta causa quis vindicet. Unde si
quis ita petit, filium suum, vel, in potestate ex jure Romano, videtur
mihi et Pomponius consentire, recte eum egisse; ait enim, adjecta
causa ex lege Quiritium. vindicare posse, Dig. 6, 1,2. ‘If free
persons, dependent on the plaintiff— for instance, children subject
to his power—are sought to be recovered by vindication, the title or
mode of dependence must be specified in the formula (intentio).
Thus a claim of a person as son, or as subject to power by
the law of Rome, even according to Pomponius, is regular: for
he says that the specification of a title under a statute of the
Quirites makes the vindication valid (The anomalous forms, ex
jure Romano, ex lege Quiritium, instead of the usual, ex jure
Quiritium, were perhaps peculiar to the pleadings in this kind of
guit.)
Justinian simplified the formalities of emancipation and adop-
tion. He allowed the former to be accomplished by a simple
declaration before a competent magistrate, Inst. 1, 12, 6; and
the latter by appearance of the parties before a competent
judge and insinuatio i.e. a memorandum of the transaction in
the public records of his office (actis intervenientibus), Cod. 8,
48, 11.
In English law children are enfranchised, and the limited power
of the father over their person and property is terminated by two
events which did not operate emancipation in Roman law, marriage
and arrival at years of discretion, that is, attainment of majority by
the completion of twenty-one years of age. At these points,
under English law, the empire of the father or other guardian
gives place to the empire of reason; whereas neither marriage
nor majority released the Roman son or daughter from patria
potestas.
$ 137. |
| | $137. A woman subjected to
— mancipatione desinunt in manu
esse, et si ex ea mancipatione manu-
missae fuerint, sui iuris efficiuntur.
$137 a. quae |
cogere coemptzjonatorem potest, ut
se remancipet, cui ipsa uellit
nihilo magis potest cogere, quam
hand by coemption is, like a daugh-
ter, released therefrom by one
mancipation, and on subsequent
manumission becomes independent.
$ 137 a. Between a woman who
has entered into & coemption with
& stranger and & woman who has
entered into a coemption with a
1.8§137-141.] Q. M. MANU ET MANCIPIO LIBERENTUR.
et filis patrem. sed filia quidem
nulo modo patrem potest cogere,
etiamsi adoptiua sit; haec autem
(wrum) repudio misso proinde
conpellere potest, atque si ei num-
quam nupta fuisset.
$138. Ai qui in causa mancipii
sunt, quia seruorum loco habentur,
undicta, censu, testamento manu-
missi sul iuris fiunt.
$ 139. Nec tamen in hoc casu
lex Aelia Sentia locum habet. itaque
nihil requirimus, cuius aetatis sit is
qui manumittit et qui manumitti-
tur; ac ne illud quidem, an patro-
num creditoremue manumiseor ha-
beat. ac ne numerus quidem lege
Fufia Caninia finitus in his personis
locum habet.
§ 140. Quin etiam inuito quo-
que eo cuius in mancipio sunt,
censu libertatem consequi possunt,
excepto eo quem pater ea lege man-
cipio dedit, ut sibi remancipetur ;
nam quodammodo tunc pater po-
testatem propriam reseruare sibi
uidetur eo ipso, quod mancipio re-
cipit. ac neis quidem dicitur inuito
eo cuius in mancipio est censu li-
bertatem consequi, quem pater ex
noxali causa [mancipio dedit |, ueluti
quod furti eius nomine damnatus
est, [et eum] mancipio actori dedit ;
nam hunc actor pro pecunia habet,
107
husband there is this difference,
that the former has the power of
compelling the coemptionator to re-
mancipate her to anyone she pleases;
whereas the latter cannot compel
him to do this any more than a
daughter can her father. A daugh-
ter, however, has no means of com^
pelling her father to emancipate
her even if she is only such by
adoption, whereas a wife by send-
ing & message of divorce can com-
pel her husband to release her from
his hand, just as if they had never
been married.
$138. As persons in mancipation
have the status of slaves, manumis-
sion by fictitious vindication, by
entry on the censor's register, by
testamentary disposition, are the
modes by which they acquire inde-
pendence.
$ 139. But to them the lex Aelia
Sentia has no application: no age
of the person manumitting or the
person manumitted is required ; the
manumission is subject to no pro»
viso against fraud on the rights of
patron or creditors, nor even to
the numerieal limitation of the lex
Fufia Caninia.
$ 140. The assent of the holder
in mancipation is not required for
manumission by entry on the regis-
ter of the censor, except when a son
has been mancipated by a father
with a condition of remancipation,
for by such a condition the father
is deemed to have reserved a certain
amount of parental power: the
assent of the holder in mancipation
is also necessary to manumission
by entry on the censor’s register
when a delinquent son has been
surrendered by his father in con-
sequence of a noxal suit; when,
for instance, the father has been
condemned in an action for a theft
committed by the son, and has by
mancipation surrendered his son to
108 m DE PERSONIS.
$ 141. In summa admonendi
sumus aduersus eos quos in man-
cipio habemus, nihil nobis contu-
meliose facere licere ; alioquin in-
iuriarum tenebimur. ac ne diu qui-
dem in eo iure detinentur homines,
sed plerumque hoc fit dicis gratia
uno momento, nisi sc?licet ex nox-
ali causa mancipentur.
[1. $$ 142-154:
the plaintiff in lieu of pecuniary
damages.
$ 141. Finally, it is to be observed
ihat contumelious treatment of a
person held in mancipation is not
permitted, but renders liable to an
action of outrage; and the status
generally is not persistent, but
merely formal and momentary, ex-
cept when it is the consequence of
gurrender in lieu of damages in an
action of trespass.
$137. Dissolution of marriage was either by the consent of both
parties (divortium) or by the act of one (repudium). The message of
repudiation contained the formula, Tuas res tibi habeto, ‘ Take away
thy property. Mimam illam suam suas res sibi habere jussit, claves
ademit, exegit; Cie. Phil. 2, 28. ‘The actress was ordered to pack,
deprived of the keys, turned out of the house.’ The lex Julia de
adulteriis prescribed a form for repudium, and required the message
to be delivered by & freedman of the family, in the presence of
seven witnesses above the age of puberty and citizens of Rome.
The party who made a causeless repudium, or whose misconduct
justified a repudium, was punished by pecuniary losses in respect of
dos and propternuptial donations. After much veering legislation
in later times, Justinian enacted that a man or woman who divorced
without a cause should retire to a cloister and forfeit all his or her
estate, one moiety to his or her successors, and the other moiety to
the cloister. Nov. 184, 11.
§ 140. Ihering, § 32, infers from this that the census, like a year
of jubilee, freed all but noxal and fictitious bondsmen at the end of
five years: and that the Twelve Tables, in limiting a father to three
mancipations, disabled him from selling the services of his son for
more than fifteen years,
DE TUTELIS.
§ 142. Transeamus nunc ad aliam $142. Let us now proceed to
diuisionem. nam ex his personis
quae neque in potestate neque in
manu neque in mancipio sunt, quae-
dam uel in tutela sunt uel in cura-
tione, quaedam neutro iure tenen-
tur. uideamus igitur quae in tu-
another classification : persons not
subject to power, nor to hand, nor
held in mancipation, may still be
subject either to guardianship or to
administration, or may be exempt
from both forms of control. We will
I. $$142-154.]
tela, quae in curatione sint; ita
enim intellegemus ceteras personas
quae neutro iure tenentur.
$143. Ac prius dispiciamus de
his quae in tutela sunt.
$ 144. Permissum est itaque
parentibus, liberis quos in pote-
state sua habent, testamento tu-
tores dare: masculini quitlem sexus
inpuberibus, ( feminini autem sexus
cuwscumque aetatis sint, et tum
quo)que cum nuptae sint. ueteres
enim uoluerunt feminas, etiamsi
perfectae aetatis sint, propter animi
leuitatem in tutela esse.
$ 145. Itaque si quis filio filiae-
que testamento tutorem dederit, et
ambo ad pubertatem peruenerint,
flius quidem desinit habere tu-
torem, filia uero nibilo minus in
tutela permanet; tantum enim ex
lege Iulia et Papia Poppaea iure
liberorum tutela liberantur feminae.
lquimur autem exceptis uirgin-
ibus Yestalibus, quas etiam ueteres
in honorem sacerdotii liberas esse
uoluerunt, itaque etiam lege XII
tabularum cautum est.
$ 146. Nepotibus autem nepti-
busque ita demum possumus testa-
mento tutores dare, si post mor-
tem nostram in patris gui potes-
tatem [iure] recasuri non sint.
ilaque si filius meus mortis meae
tempore in potestate mea sit, nepo-
les ex eo non poterunt ex testa-
mento meo babere tutorem, quam-
uis in potestate mea fuerint ; scili-
cet qnia mortuo me in patris sui
potestate futuri sunt.
$ 147. Cum tamen in conpluri-
bus aliis causis postumi pro iam
natis habeantur, et in hac causa
plaeuit non minus postumis quam
iam natis testamento tutores dari
DE TUTELIS.
109
first examine what persons are sub-
ject to guardianship and adminis-
tration, and thus we shall know
who are exempt from both kinds of
control.
§ 143. And first of persons sub-
ject to guardianship or tutelage.
§ 144. The law allows a parent
to appoint guardians in his will for
the children in his power, below the
age of puberty, if they are males;
whatever their age, and notwith-
Standing their marriage, if they
are females; for, according to our
ancestors, even women who have
attained their majority, from their
intellectual weakness, require to be
kept in tutelage.
$ 145. Accordingly, when a bro-
ther and sister have a testamentary
guardian, on attaining the age of
puberty the brother ceases to be a
ward, but the sister continues, for it
is only under the lex Julia and Papia
Poppaea and by title of maternity
that women are emancipated from
tutelage; except in the case of vestal
virgins, for these, even in our an-
cestors' opinion, are entitled by their
sacerdotal function to be free from
control, and so the law of the Twelve
Tables enacted.
$ 146. A grandson or grand-
daughter can only receive a tes-
tamentary guardian provided the
death of the testator does not bring
them under parental power. Ac-
cordingly, if before the grand-
father's death the father was in the
grandfathers power, the grand-
children, though in the grand-
father's power, cannot have a testa-
mentary guardian, because his death
leaves them in the power of the
father.
$ 147. As in many other matters
after-boru children are treated on
the footing of children born before
the execution of the will, so it is
ruled that after-born children, as
410
posse, si modo in ea causa sint,
ut si wiuis nobis nascantur, in po-
lestate nostra fiant. hos (enim)
etiam heredes instituere possumus,
cum extraneos postumos heredes
instituere permissum non sit.
$148. (Vxori) quae in manu
est, proinde ac filiae, item nurui
quae in filic manu est, proinde ac
nepti tutor dari potest.
$149. Rectissime autem tutor
sic dari potest L. TITIVM LIBERIS
MEIS TVTOREM Do. sed et si ita
scriptum sit LIBERIS MEIS uel VXORI
MEAE TITIVS TVTOR ESTO, recte
datus intellegitur.
$ 150. In persona tamen uxoris
quae in manu est, recepta est etiam
tutoris optio, id est ut liceat ei per-
mittere quem uelit ipsa tutorem
sibi optare, hoc modo TITIAK VXORI
MEAE TVTORIS OPTIONEM DO. quo
casu licet uxori (tutorem optare)
uel in omnes res uel in unam forte
aut duas.
$ 151. Ceterum aut plena optio
datur aut angusta.
$152. plena ita dari solet, ut
proxime supra diximus. angusta
ita dari solet TITIAE VXORI MEAE
TVTORIS OPTIONEM DVMTAXAT 8E-
MEL DO, aut DVMTAXAT BIS DO.
$ 153. Quae optiones plurimum
inter se differunt. nam quae plenam
optionem habet, potest semel et
bis et ter et saepius tutorem optare ;
quae uero angustam habet optionem,
si dumtaxat semel data est optio,
amplius quam semel optare non
potest ; si dwmtaxat bis, amplius
quam bis optandi facultatem non
habet.
DE PERSONIS.
[r. §§ 142-154.
well as children born before the
will was made, may have guardians
tberein appointed, provided that if
born in the testator's lifetime they
would be subject to his power [and
immediate successors], for the in-
heritance may be devised to such
after-born children, but not to after-
born strangers.
$148. A wife in the testator's
hand may receive & testamentary
guardian as if she were a daughter,
and a son's wife in the son's hand
as if she were a granddaughter.
§ 149. The most regular form of
appointing a guardian is in the fol-
lowing terms: ‘I A»PorNT Lucius
TITIUS GUARDIAN TO MY CHILDREN ;'
the form, * BE Lucius Tittus GvAR-
DIAN TO MY CHILDREN—or, ‘TO MY
WIFE '—is also valid.
$ 150. To a wife in his hand a
testator is permitted to devise the
selection of her guardian, that is, he
may authorize her to choose whom
she pleases, in the following terms:
‘To TiriA My WIFE I DEVISE THE
SELECTION OF HER GUARDJAN;’
whereupon she may nominate either
& general guardian or a guardian for
certain specified matters.
§ 151. The option of a guardian
may be limited or unlimited.
$ 152. Unlimited option is usu-
ally devised in the form above men-
tioned ; limited option in the follow-
ing terms: ‘To Titia My WIFE I
DEVISE NOT MORE THAN ONE OPTION’
~—or, ‘NOT MORE THAN TWO OPTIONS
—OF A GUARDIAN.’
§ 153. The effect of these forms
is very different: unlimited option
is a power of changing the guardian
an indefinite number of times; -
limited option is the right of a
single choice, or of two choices, as
may happen.
1. §§ 142-154.] DE TUTELIS. 111
$ 154. Vocantur autem hi qui § 154. A guardian nominated by
nominatim testamento tutores dan- the testator is called a dative guar-
tur, datini; qui ex optione sumun- dian; one selected by the widow is
tur, optiui. called an optative guardian.
Having examined those inferiorities of legal capacity which con-
stituted a status, we now proceed to examine certain cases of inca-
pacity which, though analogous to the former as belonging to the
sphere of unequal rights, were not included by the Romans under
the denomination of status. The inferiorities of capacity in infancy,
minority, wardship, curatel, were not so considerable as those which
we have hitherto examined. The diminution of rights in a lapse
from independence to curatel was less than the least capitis minutio,
and accordingly a prodigal who was interdicted from the administra-
tion of his estate and subjected to the control of a eurator, was not
said to undergo a status mutatio: his patrimony still vested in him, —
though he was deprived of its administration; whereas adrogatio ©
and in manum conventio divested a person of the capacity of
ownership and active obligation: inferior status, in a word, is
incapacity of right; wardship and curatel are only incapacities of
disposition.
Guardianship is thus defined: Est autem tutela jus ac potestas in
capite libero, ad tuendum eum qui propter aetatem se defendere
nequit, jure civili data ac permissa, Inst. 1, 18, 1. * Guardianship
is à right and power over an independent person conferred or
authorized by the Civil law for the protection of one who is in-
capaeitated by age for self-defence. The duties of the guardian
related both to the person and to the property of the ward. In
respect of his person, the guardian was charged with the care of
his nurture and education ; in respect of his property, the guardian’s
funetion was distinguished as either exclusive administration or
concurrent interposition of authority. Up to the age of seven the
ward was called infans, and during this period the guardian acted
alone (administratio, negotiorum gestio); after the completion of
seven years until the age of puberty (fourteen for males, twelve for
females) the ward acted, and the guardian concurrently gave his
sanction (auctoritas), 8, § 109. Even in the latter period the guardian
might act alone or concurrently according to his discretion: he
probably gave his sanction in proceedings governed by the Civil law
[Nemo alieno nomine lege agere potest, Dig. 50, 17, 123, ‘No ap-
pearance in another person's name, i.e. no representation or agency,
112 DE PERSONIS. (1. $$ 156—168.
is admissible in statute-process?], and simply administered in proceed-
ings governed by the law of nations. In the time of Gaius, women
continued subject to guardianship after the age of puberty: the
functions of the guardian were then confined to auctoritas, which
in most cases was a mere formality; the power of administration
vested in the woman, $ 190.
$ 147. Postumus (afterborn) has no etymological connection with
inhumation, and no reference to the death of the testator, but simply
denotes a person born after the execution of a will, whether after
the death or in the lifetime of the testator. The law, however,
originally made a distinction between the two cases. The institu-
tion or disinherison of a postumus born after the death of a testator
was valid at Civil law, and availed to save the will from rupture by
afterbirth (agnatio) of an immediate successor (suus heres): the
same institution or disinherison would have been invalid and un-
availing if the postumus had been born in the lifetime of the
testator, before the enactment of the lex Junia Velleia in the
reign of Augustus, 2 § 180, comm. A grandson was postumus
alienus if born in the hfetime of his father; he was postumus suus,
i.e. immediate lineal successor to his grandfather, if born after the
death of his father, 2 $ 241, and only in this event could he receive
a guardian by the will of his grandfather. Aquillius Gallus in-
vented a form for the conditional institution or disinherison of a
grandson, and, doubtless, also for the nomination of his guardian,
by a will executed in the lifetime of his father: conditioned, that
is, to take effect in the event of the decease of the father before the
death of the grandfather. It appears, then, that the statement of
Gaius, § 147, is inaccurate, unless we complete it by words taken
from the parallel passage in the Institutes, 1, 18, 4, and read : Si
modo in ea causa sint ut, si vivis nobis nascantur, sui et in
potestate nostra fiant.
$ 148. In filii manu must be regarded as an inaccurate expres-
sion: for filiusfamilias was incapable of all civil rights, including
manus, and could only serve as a conduit-pipe by which the right
of manus vested in his father.
DE LEGITIMA AGNATORUM TUTELA.
§ 155. Quibus testamento quidem § 155. In default of a testament-
tutor datus non sit, iis ex lege Xi? ary guardian the statute of the
(tabularum) agnati sunt tutores, Twelve Tables assigns the guardian-
1.§ 155-158.] DE LEGITIMA AGNATORUM TUTELA.
qui uocantur legitimi.
$ 156. Sunt autem agnati per
uirilis sexus personas cognatione
juncti, quasi a patre cognati, ueluti
frater eodem patre natus, fratris
filius neposue ex eo, item patruus
et patrui filius et nepos ex eo. at
li qui per feminini sexus personas
cognatione coniunguntur, non sunt
agnati, sed alias naturali iure cog-
nati. itaque inter auunculum et
sororis filium non agnatio est, sed
cognatio, item amitae, materterae
flus non est mihi agnatus, sed
cognatus, et inuicem scilicet ego illi
eodem iure coniungor, quia qui na-
scuntur, patris, non matris familiam
secuntur.
$157. Et olim quidem, quantum
ad legem xii tabularum attinet,
etiam feminae agnatos habebant
tutores, sed postea lex Claudia
lats est, quae quod ad feminas
attinet, (agnatorum) tutelas sus-
tulit; itaque masculus quidem in-
pubes fratrem puberem aut patruum
habet tutorem, femina uero talem
habere tutorem non potest.
§ 158. Sed agnationis quidem ius
capitis deminutione perimitur, cog-
nationis uero ius eo modo non com-
mutatur, quia ciuilis ratio ciuilia
quidem iura corrumpere potest, na-
turalia uero non potest.
113
Ship to the nearest agnates, who
are hence called statutory guar-
dians.
$ 156. Agnates (3 $ 10) are cog-
nates through males, that is, through
their male ascendents: as a brother
by the same father, such brother's
son or son's son; a father's brother,
his son or son's son. Cognates
through female ascendents are
merely natural kinsmen. Thus,
between a man and his sister’s son
there is not agnation, but cogna-
tion: so my father’s sister’s son or
my mother’s sister's son is not my
agnate, but my cognate, and vice-
versa; for children are members
of their father's family, but not
of their mother's.
$ 157. In former times, the statute
of the Twelve Tables made females
as well as males wards of their
agnates: subsequently a law of the
Emperor Claudius abolished this
wardship in the case of females:
accordingly, a male below the age
of puberty has his brother above
the age of puberty or his paternal
uncle for guardian, but a female
cannot have such a guardian.
$ 158. Loss of status extinguishes
rights by agnation, while it leaves
. unaffected rights by cognation, be-
cause civil changes can affect rights
annexed to a civil title, but not
rights annexed to a natural title.
$158. The maxim here enunciated is calculated to give a false
idea of the relation of the institutes of Gentile law to those of Civil
law, Title by cognation is just as much an institute of Positive
law as title by agnation. The synthesis of title and right in Civil
law may be freakish and capricious, while that in Gentile law is
reasonable and expedient ; but both are equally positive institutions,
and both are equally mutable and liable to be overruled. Accord-
ingly, the specious-sounding maxim, that revolutions in status or
avil condition cannot affect such rights as are annexed to natural
titles, erumbles away as soon as we examine it, for we find that it
I
DE PERSONIS.
only holds good of the most insignificant change, the minima
capitis minutio, 8 § 27, and that maxima and media capitis minutio
extinguish gentile title by cognation as well as civil title by agna-
tion, Inst. 1, 16, 6.
The truth is, that the effects of a collision of Civil and Natural
law fall under two very different classes, which it is important to
distinguish,
1. If the command of the civil lawgiver, under the sway of
motives financial, political, ethical, or religious, is highly imperious
and absolutely compulsive, all natural titles with which it may
come in conflict are absolutely void and inoperative: e.g. the Se.
Velleianum, prohibiting suretyship of women, allowed no naturalis
obligatio to be produced by any such suretyship: and so with the
laws prohibiting gambling and usury.
2. If the command of the civil law is less peremptory and abso-
lute, it may deprive any conflicting natural title of plenary force,
and yet leave to it a naturalis obligatio capable of acquiring efficacy
by some machinery of Positive law; e.g. the Sc. Macedonianum,
prohibiting money loans to a filiusfamilias without the sanction of
his father, made them irrecoverable by action, and yet the courts
recognized in the borrowing filiusfamilias a naturalis obligatio, which
was capable of novation, Dig. 46, 2, 19, and a bar to recovery
back (condictio indebiti) m case of actual repayment, Dig. 14, 6, 10.
When Justinian revolutionized the law of intestate succession
and made the right of succession depend on cognation instead of
agnation, he made a corresponding change in the obligation of
guardianship, which henceforth devolved on cognates instead of
agnates, women as formerly, with the exception of mothers and
grandmothers, being excluded from the office, Nov. 118, 5.
114 [1. $$ 159-164,
DE CAPITIS
$ 159. Est autem capitis demi-
nutio prioris status permutatio.
eaque tribus modis accidit : nam
aut maxima est capitis deminutio,
aut minor, quam quidam mediam
uocant, aut minima.
$ 160. Maxima est capitis demi-
nutio, cum .liquis simul et ciuita-
tem et libertatem amittit; quae
accidit incensis, qui ex forma cen-
suali uenire iubentur; quod ius
MINUTIONE.
$ 159. Loss of status, in other
words, civil degradation or diminu-
tion of civil rights, is of three orders,
greatest, minor or mediate, and
least.
$ 160, The greatest loss of status
is the simultaneous loss of citizen-
ship and freedom, which happens
when those who have evaded in-
scription on the censorial register are
1. §§ 159-164.)
I—— —-ex lege—|———qui
p——
contra eam legem in urbe Roma
do micilium babuerint ; item femi-
nse, quae ex senatusconsulto
Claudiano ancillae fiunt eorum do-
minorum, quibus inuitis et denun-
tiantibus cum seruis eorum coierint.
$ 161. Minor siue media est
capitis deminut?o, cum ciuitas amit-
titur, libertas retinetur; quod ac-
cidit ei cui aqua et igni inter-
dictum fuerit,
$162. Minima est capitis demi-
nutio, cum et ciuitas et libertas re-
tintur, sed status hominis com-
mutatur; quod accidit in his qui
adoptantur, item in his quae co-
emptionem faciunt, et in his qu?
mancipio dantur quique ex manci-
patione manumittuntur; adeo qui-
dem, ut quotiens quisque mancipe-
tur aut manumittatur, totiens capite
deminuatur,
$ 163. Nec solum maioribus
(capitis) deminutionibus ius agna-
tionis corrumpitur, sed etiam mini-
ma; et ideo si ex duobus liberis al-
terum pater emancipauerit, post
obitum eius neuter alteri agnationis
lure tutor esse poterit,
$ 164. Cum autem ad agnatos
tutela pertineat, non simul ad omnes
pertinet, sed ad eos tantum qui
proximo gradu sunt.
$ 160. Ulpian also refers to
DE CAPITIS MINUTIONE.
115
sold into slavery according to the
form of census process, also under
the law when persons in vio-
lation of it make Rome their place
of residence, and also under the
Sc, Claudianum in case of per-
sistent intercourse on the part
of a free woman with another
person's slave in spite of the pro-
hibition and denunciation of the
owner,
§ 161. Minor or intermediate
loss of status is loss of citizenship
unaccompanied by loss of liberty,
and is incident to interdiction of
fire and water.
§ 162. The least loss of status is
descent in domestic rights with-
out loss of citizenship or freedom,
and occurs in adoption, coemption,
noxal surrender, and manumission
by mancipation, and so inseparably
that each successive mancipation and
manumission by a coemptionator, is
a fall in domestic status,
§ 163. Not only by the two
greater losses of status are rights
of agnation extinguished, but also
by the least: accordingly, if one of
two children is emancipated, the
elder cannot on the father’s decease
be guardian to the younger by right
of agnation.
§ 164. When agnates are entitled
to be guardians, it is not all who
are so entitled, but only those of
the nearest degree.
the penalty incurred by incensi
(11, 11 cum incensus aliquis venierit) The lex, the name of which
is now illegible, may possibly be the lex Aelia Sentia, which by one
of ite provisions recalled into slavery dediticii, who resided in Rome
or within a certain distance from it (§ 27). Gaius might further
have mentioned, as causes reducing to slavery, surrender, by the
pater patratus to a foreign state for an offence against international
law, Livy, 5, 86, or evasion of military service (populus quum
I2
116 DE PERSONIS. [1. $$ 159-164.
eum vendidit qui miles factus non est, Cic. Pro Caec. 84), or capture
by the enemy, $ 129, or condemnation for a capital crime, which
made the convict a slave of punishment (servus poenae, Inst.
1, 16, 1), i.e. reduced him to penal servitude, or condemnation of
a freedman for ingratitude towards his patron (libertus ingratus
cirea patronum condemnatus, ibid.) whereupon he forfeited his
freedom, or collusion of a freeman in consenting to be sold as a
slave on condition of sharing the purchase-money (cum liber homo,
major viginti annis, ad pretium participandum sese venundari passus
est, Inst. 1, 8, 4). After the price had been paid, the vendor dis-
appeated, the supposed slave recovered his liberty by a liberalis
causa, and the purchaser was left without his slave and without his
money. To check this fraud a statute enacted, that if the person sold
was twenty years old at the time of the sale or partition of the price,
he should really become the slave of the purchaser, Dig. 40, 12, 7.
The libertus ingratus would exemplify a fall from the condition
of libertinus to that of servus; any of the other instances might be
a case of a fall from ingenuus to servus; the fall from ingenuus to
libertinus would also by the definition (a descent from a higher to a
lower grade in the category of liberty) be a case of capitis minutio
maxima, and occurred by the operation of the Sc. Claudianum.
A freewoman (ingenua) who had commerce with a slave with the
consent of his proprietor procreated slaves without forfeiting her
own freedom, § 84; she lost status, however, for she became the
freedwoman of the proprietor, Paulus, 4, 10, 2; Tac. Ann. 12, 53.
§ 161. Under the category of Civitas, as there are three classes,
civis, latinus, peregrinus, so there are three possible degradations,
the fall from civis to Latinus, instanced in the emigrant to a Latin
colony, § 131; the fall from civis to peregrinus, instanced in the
interdiction or deportation of a civis; and the fall from Latinus to
peregrinus, instanced when the same events happened to Latinus.
A. lapse from liber to servus was a dissolution of marriage, for
servus was incapable of matrimony: a lapse from civis to pere-
grinus was & dissolution of civil wedlock (connubium), for this
could only subsist between cives; but if both parties corfsented,
they might continue in gentile wedlock, Cod. 5, 17. "The confisca-
tion of property or universal succession of the fiscus, which accom-
panied greatest and minor loss of status, was not a necessary
incident of capitis minutio (it did not happen when civis became
Latinus by emigration; and an alien, which a citizen became by
1.§§159-164.] | DE CAPITIS MINUTIONE. 117
deportation, was capable of holding property), but was a special
provision of the criminal code.
The political elements of civitas, suffragium and honores, were
forfeited by infamy (infamia) or loss of civic honour (existimatio) ;
and hence arises the question whether infamia is to be regarded
as a capitis minutio.
Austen, in laying the bases of jurisprudence, has referred to the
law of honour to illustrate the difference of positive law from all law
not positive; but in Rome the law of honour, as the law of reli-
gion in most modern states, was partially taken up into positive
legislation. The public sentiments of esteem and disesteem, that is
to say, were armed with political sanctions, and thus certain pro-
ceedings were discouraged which were not otherwise prohibited by
positive law, and the due application of these sanctions was the
funetion of a special organ appointed by the legislator. This organ
was the censor, who had both a discretionary power of branding a
man with ignominy by an annotation against his name in the
civic register (notatio, subscriptio censoria), and, as revisor of the
lists of the senate, the knights, and the tribes, enforced the dis-
abilities of infamy by removing the infamous person from any of
those bodies. As the Comitia Centuriata, as well as the Comitia
Tnbuta, had in later times been connected with the division into
tribes, the tribeless man (aerarius) forfeited his vote and became
incapable of military service, Livy, 7, 2. These graver conse-
quences of infamy were not in the discretion of the censor, but
governed by strict rules of consuetudinary law (jus moribus intro-
duetum). Infamy was the consequence of condemnation in any
criminal trial (publicum judicium) ; in certain civil actions founded
on delict, theft, rapine, outrage, fraud; or on certain contracts,
such as partnership, agency (mandatum), deposit; or on quasi
contract, such as guardianship; or of insolvency (bona possessa,
proscripta, vendita); or, without any judicial condemnation, was
annexed to certain violations of the marriage laws, such as bigamy
or the marriage of a widow before the termination of her year of
mourning, and to the pursuit of certain professions, such as that of
stage-player or gladiatot. In some of these latter instances con-
suetudinary law, as above intimated, inflicted positive sanctions on
acts that originally had only been prohibited by the sanctionlesa
law of honour. In view of these consequences, infamia may at one
time have been regarded as capitis minutio, Cicero pro Quinctio
118 | DE PERSONIS. [1. $$ 159—164.
speaks of a suit involving existimatio as a causa capitis, and Tertul-
lian, the father of the Church, who was noted for his knowledge of
Roman law, and possibly was identical with the jurist of that name,
of whom five fragments are preserved in the Digest, speaks of infa-
mia as capitis minutio, De Spectaculis, 22. But the political nghts
of civitas had ceased to be of importance under the emperors, and
we are expressly told in the Digest that infamy did not constitute
a status mutatio, Dig. 50, 16, 103, |
Besides extinguishing the political or publicistic elements of
civitas, infamia affected to a certain extent its private elements,
both commercium and connubium; the former, as we shall see, in
respect of the office of procurator, 4 § 124, and the latter in respect
of the disabilities of celibacy under the lex Julia, which were not
removed by marriage with an infamis. Both these classes of dis-
ability had practically vanished even before they were abolished in
the time of Justinian.
This seems the proper place to notice certain inequalities of
condition, analogous to the old distinctions of status, which grew
up in the later ages of Rome, and some of which survived the fall
of the Roman empire. From the establishment of the empire the
army was caressed by each succeeding despot, and privileges of
various kinds were so accumulated on the military service, that the
relation of the soldiery to the rest of the world very much resem-
bled the ancient relation of Romanus to peregrinus. The pre-
eminence of the military caste was the result of elevation; other
unprivileged castes were created by depression. As the new reli-
gion grew to political power, zealous legislators were eager to
promote its ascendency by the means of political sanctions.
Pagans, Jews, heretics, apostates, protestants, papists, were suc-
cessively frowned upon by the legislator, and for a long season
subjected to incapacities and disabilities as great as, or greater
than, those which weighed upon infamis: until by a change in
political conceptions these inequalities of right have been again
levelled and almost obliterated in most of the codes of modern
Europe. See also the remarks on Colonatus, 3 § 145.
§ 162. In the category of domestic position there are three
classes, (1) sui juris, or paterfamilias and materfamilias; (2) filius-
familias and filiafamilias; and (3) mancipium: but there are only
two possible degradations, (1) from sui juris to filius- or filia-
familias, which occurs in adrogation and the in manum conventio
1. $$ 159~-164.] DE CAPITIS MINUTIONE. 119
of a woman previously independent; and (2) from filius- or filia-
familias to mancipium, which occurs in noxal surrender, in eman-
cipation, in adoption as implying mancipation, and in the remanci-
pation of a woman by her husband or the person who held her
in manu in virtue of a fiduciary coemption. The descent from sui
juris to mancipium cannot occur, because the only persons capable
of passing into the condition of mancipium by the process of
mancipation were filius- and filiafamilias and women in manu, i. e.
persons already alieni juris.
In the translation of the text, and in the exposition of capitis
minutio, and particularly of the third and last kind, I have
adopted the theory of Savigny as being the most tenable, and
forming the most harmonious system of legal conceptions. I must
now briefly notice an opposing theory, and the objections that may
be raised against that of Savigny. Some expositors hold that
capitis minutio minima did not necessarily and essentially involve
any degradation, any downward step on the ladder of status, but
might be merely a horizontal movement on the same platform, a
transit from family to family, a disruption of the ties of agnation,
a cessation of membership in a given civil group. This opinion
is founded on the authority of Paulus, undeniably an eminent
juris auctor, who defines the least diminution of head as follows:
Dig. 4, 5, 11. ‘Capital diminution is of three orders, greatest,
minor, least; as there are three things that we have, liberty, citi-
zenship, family. The universal loss of freedom, citizenship, family,
is the greatest capital diminution, loss of citizenship while liberty
is retained is minor capital diminution; when liberty and citizen-
&hip are retained, and family only is changed, there is the least
capital diminution. Consistently with this definition Paulus
affirms that the children of adrogatus suffer capitis minutio minima :
Dig. 4, 5, 8. ‘The children who follow an adrogated parent
suffer diminution of head, as they are dependent and have changed
family.’ Here, then, if Paulus is right, we have capitis minutio
without any degradation, any loss of rank; for the children of
adrogatus have the same status of filiifamilias after their father's
adrogation as they had before, although in a different family. The
proposition, however, that the children of adrogatus suffer capitis
minutio is not confirmed by any other jurist, and Savigny supposes
that the doctrine was peculiar to Paulus, and was in fact inaccurate.
Another objection to the theory of Savigny, though not so serious
120 | ‘DE PERSONIS. [r. $$ 159—164.
as the opposing authority of Paulus, is presented by the operation
of in manum conventio.
When an independent woman made a coemption she undoubtedly
declined in status, as before coemption she was sui juris, and after
eoemption she is filiafamilias. But a filiafamilias who made a
eoemption apparently suffered no degradation: the definitive result
of the coemption leaves her, as before, filiafamilias, and that,
apparently, without having passed through any lower stage; for
Gaius expressly says that the lex mancipii, or formula of mancipa-
tion in coemption, was not calculated to reduce the woman to a
servile condition, § 123. Gaius tells us, however, that coemption
operates a capitis minutio, $ 162, without limiting the effect to the
ease of a woman sui juris. The operation of coemption to produce
capitis minutio is also mentioned by Ulpian, and again without any
express limitation to the case of an independent woman: 11, 18.
* There is least capital diminution when both franchise and freedom
are unimpaired, and only position in household life is changed, as
occurs in adoption and subjection to hand.’ If filiafamilias under-
went capitis minutio when she made a coemption, her case dis-
proves our theory that all capitis minutio requires degradation : but
Savigny assumes that, though in these passages there is no express
limitation to the case of independent women, yet this limitation
must be understood; and there is nothing outrageous in this
supposition. .
While, however, these objections to the hypothesis of Savigny
are doubtless serious, on the other hand they are compensated by
legal facts which seem absolutely irreconcilable with the adverse
hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gel-
lius, 1,12. ‘As soon as a vestal virgin is selected and conducted
to the shrine of Vesta and delivered to the pontifices, she instanta-
neously, without emancipation and without capital diminution,
is freed from parental power and acquires testamentary capacity.
. . . . Moreover, in the commentary of Labeo on the Twelve Tables
it is stated that a vestal virgin is neither heiress-at-law to any one
who dies intestate nor, if she herself die intestate, leaves any heir-
at-law, and that in this event her property lapses to the state.’
For Flamen Dialis, see 8 $ 114. If mere transit from a family
and ceasing to belong to a given group of agnates constituted
capitis minutio, and was its definition, then the vestal virgin must
inevitably have suffered capitis minutio; the fact that she did not,
1. §§ 159-164. | DE CAPITIS MINUTIONE. 121
m spite of leaving her family and snapping the agnatic tie, is at
once conceivable, on the supposition that there is no capitis minutio
without degradation.
Unless capitis minutio minima involved a downward step on the
stair of status, it has no analogy to the other forms of capitis
minutio, and it is not obvious why it should have the same generic
appellation, or why it should be handled in the same department of
the code. The rupture of the ties of agnation, extinguishing nghts
of intestate succession, might be a loss, but it was not a loss from
inferiority of privilege; it was a loss of an equal among equals; it
resembled the loss which a husband incurred by divorce of his wife,
or a father by emancipation of his son, or a devisee or heir by
neglecting to accept a succession within the appointed period,
2 § 164; none of which persons were said to undergo capitis
minutio, because none of them suffered a reduction of the univer-
sitas juris called status.
On the whole, then, Savigny seems justified in considering the
definition given by Paulus and his statement respecting the children
of adrogatus as inexact. Paulus himeelf, in speaking of emancipa-
tion, implies the true conditions of capitis minutio: Dig. 4, 5, 3.
‘An emancipated son or other descendant clearly has his head
diminished, as emancipation necessarily involves an imaginary
descent into a servile condition.’
Although rupture of the ties, and forfeiture of the rights, or
release from the duties, of agnation, were not the essence of capitis
minutio minima, yet they were among its principal consequences.
The eapite minutus lost his claim as suus heres at civil law, that is,
his right to succeed to an intestate ascendent, or to be instituted
heir in his will or formally disinherited. These effects of capitis
minutio were, however, counteracted by jus praetorium or the legis-
lation of the praetor. He also lost his right as legitimus heres at
eivil law, that is, his right to succeed to an intestate collateral; and
here the praetor only &o far interposed to assist the capite minutus,
a5, in default of all persons entitled as agnates, to call him to the
succession in the inferior order of cognates. The collateral suc-
cessor was called legitimus heres (statutory successor) because his
title was founded on the statutes of the Twelve Tables, which, in
default of lineal descendants, called collateral agnates to the succes-
sion. Subsequent statutes created certain quasi agnates or persons
entitled to succeed in the same order as if they were agnates, who
122 DE PERSONIS. [r. $$ 164 a-172.
hence were also called legitimi heredes; e.g. children entitled to
succeed to an intestate mother under the Sc. Orphitianum, and
mothers entitled to succeed to intestate children under the Sc. Ter-
tullianum. The effect of capitis minutio in extinguishing title to
succeed was confined to legitimus heres created by the Twelve
Tables, and did not extend to the legitimus heres created by these
subsequent statutes,
Besides the effects of capitis minutio which followed logically
from its consisting in a degradation or fall in status, and from its
involving elimination from a given family or a certain circle of
agnates, it had certain other abnormal or arbitrary consequences—
consequences, that is, which may have once been explicable on
known maxims of the civil law, but which are now inexplicable,
whose rationale had perhaps been lost even in the classical period,
and is certainly now past conjecture. Such is the rule, that capitis
minutio minima extinguished the debts of capite minutus. It is
true that the injustice operated by this rule of civil law in the case
of adrogatio was counteracted by the interposition of the praetor,
3 § 84, but, as at civil law filiusfamilias, though incapable of rights,
was capable of obligations, it is not obvious why even at civil law a
man’s debts should have been cancelled by his degradation from the
status of paterfamilias to that of filiusfamilias.
DE LEGITIMA PATRONORUM TUTELA,
$ 164a.
(4 uersus in C legi nequeunt)
| urbe|
(2 wersus in C legi nequeunt)
|—n urbe Roma——|——
itaque ut seru—est |
sunt ——|
(2 uersus in C legi nequeunt)
| —esse-— | —simile——|——'
| |
u— —À
$ 165. Ex eadem lege xii tabu-
larum libertéarum et inpuberum
libertorum tutela ad patronos libe-
rosque eorum pertinet. quae et ipsa
tutela legitima uocatur, non quia
nominatim ea lege de hac tutela
cauetur, sed quia proinde accepta
est per interpretationem, atque si
§ 165. The same statute of the
Twelve Tables assigns the guardian-
ship of freedmen below the age of
puberty to the patron and the
patron's children,and this guardian-
ship, like that of agnates, is called
statutory guardianship, not that it
is anywhere expressly enacted in
1. §§ 164 a-172.]
uerbis legis tntroducta esset. eo
enim ipso, quod hereditates liber-
torum libertarumque, si inéestati
decessissent, iusserat lex ad patro-
noe liberosue eorum pertinere,credi-
derunt ueteres uoluisse legem etiam
tutelas ad eos pertinere, quia et
agnatos quos ad hereditatem uoca-
uit, eosdem et tutores esse lusserat.
$166. Exemplo patronorum re-
ceptae (sunt et aliae tutelae, quae et
tpeae legitimae wocantwr. nam st
quis filium nepotemue ex filio et dein-
ceps inpuberes. aut filiam neptem-
ue ue ex filio et deinceps tam puberes
quam tnpuberes alteri ea lege man-
cptodederit,ut sibiremanciparentur,
remancipatosque manumisenit, legi-
timus eorum tutor erit.)
$ 166 a. [Dx FIDVCIARIA TUTELA.]
Suntet aliae tutelae, quae fiduciariae
uocantur, id est quae ideo nobis
ccnpetunt, quia liberum caput man-
cipatum nobis uel a parente uel a
coemptionatore manumiserimus.
$167. Sed Latinarum et Lati-
norum inpuberum (wtela non omni
modo ad manumissores eorum perti-
net, sed ad eos quorum ante manu-
missionem (ex ture Quiritium
fuerunt; unde si ancilla) ex iure
Quiritium tua sit, in bonis mea, &
me quidem solo, non etiam a te
manumissa, Latina fieri potest, et
bona eius ad me pertinent, sed eius
tutela tibi conpetit; nam ita lege
Iunia cauetur ; itaque si ab eo cuius
et in bonis et ex lure Quiritium
ancilla fuerit, facta sit Latina, ad
DE FIDUCIARIA TUTELA.
123
that body of statutes, but because
their interpretation by the jurists
has procured for it as much recep-
tion as it could have obtained from
express enactment ; for the fact that
the succession of a freedman or
freedwoman, when they die intes-
tate, was given by the legislator to
the patron and patron’s children,
was deemed a proof of his intention
to give them the wardship, because
when he was dealing with agnates
he had coupled wardship with suc-
cession.
$ 166. The analogy of the patron
guardian led in its turn to the
establishment of other guardian-
ships also called statutory. Thus
when a person mancipates to an-
other a son or grandson through
& son, who are below the age of
puberty, or a daughter or grand-
daughter through a son of what-
ever age they may be, on condition
that they are to be re-mancipated
to him, he becomes their statutory
guardian on manumitting them
after re-mancipation.
$ 166 a. ConcERNING Fipuciary
GUARDIANSHIP,
But there are other kinds of
guardianship, called fiduciary, which
arise when a free person has been
mancipated by his parent or co-
emptionator to an alienee and
manumitted by the latter.
§ 167. The guardianship of Latins,
male or female, below the age of
puberty, does not necessarily de-
volve on their manumitter, but on
whoever before manumission was
their quiritary owner. Accordingly,
a female slave belonging to you as
quiritary owner, to me as bonitary
owner, if manumitted by me without
your joining in the manumission,
becomes a Latin, and her succession
devolves on me, her guardianship
on you, by the enactment of the lex
Junia. If, on manumission by one
124 DE PERSONIS.
eundem et bona et tutela pertinent.
(1. $$ 164 a-172.
who combines the characters of
bonitary and quiritary owner, she
becomes & Latin, he becomes both
her successor and her guardian.
DE CESSICIA TUTELA.
$ 168. Agnatis et patronis et
liberorum capitum manumissoribus
permissum est feminarum tutelam
ali in iure cedere; pupillorum
autem tutelam non est permissum
cedere, quia non uidetur onerosa,
cum tempore pubertatis finiatur.
$ 169. Is autem cui ceditur
tutela, cessicius tutor uocatur;
$ 170. Quo mortuo aut capite
deminuto reuertitur ad eum tuto-
rem tutela qui cessit ; ipse quoque
qui cessit si mortuus aut capite
deminutus sit, a cessicto tutela dis-
cedit et reuertitur ad eum qui post
eum qui cesseiat, secundum gradum
in ea tutela habuerit.
§ 171. Sed quantum ad agnatos
pertinet, nihil hoc tempore de ces-
Bicia tutela quaeritur, cum agnato-
rum tutelae in feminis lege Claudia
sublatae sint.
$ 172. Sed fiduciarios quoque
quidam putawerunt cedendae tute-
lae ius non habere, cum ipsi se
oneri subiecerint. quod etsi pla-
ceat, in parente tamen qui filiam
neptemue aut proneptem alteri ea
lege mancipio dedit, ut sibi reman-
ciparetur, remancipatamque manu-
misit, idem dici non debet, cum is
et legitimus tutor habeatur, et non
minus huic quam patronis honor
praestandus eit.
$168. Statutory guardians, whe-
ther agnates or patrons, are per-'
mitted to transfer the guardianship
of a female ward by surrender be-
fore a magistrate; the guardianship
of a male ward is not allowed to be
transferred, because it is not con-
sidered onerous, being terminated
by the ward’s attaining the age of
puberty.
§ 169. The surrenderee of a
guardianship is called a cessionary
guardian.
§ 170. On his death or loss of
status the guardianship reverts to
the surrenderor, and on the surren-
deror's death or loss of status it is
devested from the cessionary and
devolves on the person next entitled
after the surrenderor.
$ 171. As far, however, as ag-
nates are concerned, in the present
day there is no such thing as ces-
sionary guardianship, for agnatic
guardianship over female wards was
abolished by the lex Claudia.
$172. Fiduciary guardians, ac-
cording to some, are also disabled
from transferring their guardian-
ship, having voluntarily undertaken
the burden; but although this is
the better opinion, yet a parent who
has mancipated a daughter, grand-
daughter, or great-granddaughter,
with a condition of remancipation to
himself. and manumitted her after
remancipation, should be excepted
from the rule, for he is ranked with
statutory guardians, and has the
same privilege as the patron of a
manumitted slave.
1.§§173-184.] DE PETENDO ALIO TUTORE.
§ 1644. It is probable that at the beginning of the lacuna
Gaius made mention of the statutory guardianship of the Gentiles,
and that this is the passage on the subject referred to in 3, 17.
§166¢. Cf. §§ 114, 115.
§ 167. It seems anomalous that a Latin, i.e. a non-civis, should
have been a subject of wardship: for as tutela is an institute of jus
civile (§ 142, commentary), i. e. jus civium, we should have expected
that, as in the case of patria potestas, both pater and filius must bé
eives Romani, $ 128, so here both parties, the ward as. well as the
guardian, must of necessity be cives Romani. The anomaly, how-
ever, was expressly enacted by the lex Junia: which further de-
parted from the law of the Twelve Tables by separating the
guardianship from the right of succession; for it gave the guardian-
ship to the quiritary owner, but the right of succession to the boni-
tary owner. Latinus was not only capable of being a ward, but
also of being a guardian, Fragmenta Vaticana, 193 ; that is, though
he was incapable of being a testamentary guardian, $ 28, he could
be made a tutor dativus, or appointed by a magistrate, § 185. This
magisterial disregard of the spirit of the lex Junia is similar to the
praetor’s behaviour in respect of another of its dispositions. The
law disabled Latins from taking as devisees or legatees under a
will; the praetor allowed them to take by means of a declaration of
trast, 1 § 24.
§ 168. In English jurisprudence guardianship is said not to be
capable of assignment or transfer, because it is not a right but
a duty.
125
DE PETENDO ALIO TUTORE.
$ 173. Praeterea senatusconsulto
mulieribus permissum est in absen-
tis tutoris locum alium petere ; quo
petito prior desinit; nec interest
quam longe absit is tutor.
$174. Sed excipitur, ne in ab-
sentis patroni locum liceat libertae
tutorem petere.
$175. Patroni autem loco ha-
bemus etiam parentem qui ex eo,
quod ipse sibi remancipatam filiam
neptemue aut proneptem manu-
$ 173. Moreover, a decree of the
senate permits female wards to de-
mand a substitute in the place of an
absent guardian, who is thus super-
seded : and the distance of his resi-
dence from her domicil [provided it
amounts to absence] is immaterial.
$ 174. But an exception is made
in favour of an absent patron, who
cannot be superseded on the appli-
cation of a freed woman.
$175. Ranked with patrons is
the parent who by mancipation, re-
mancipation, and manumission of a
daughter, granddaugbter, or great-
126
misit, legitimam tutelam nactus est.
(sed) huius quidem liberi fiduciarti
tutoris loco numerantur; patroni
autem liber? eandem tutelam adi-
piscuntur, quam et pater eorum
habuit.
$176. Sed aliquando etiam in
patroni absentis locum permittitur
tutorem petere, ueluti ad heredi-
tatem adeundam.
§ 177. Idem senatus censuit et
in persona pupilli patroni file.
$ 178. Nam et lege Iulia de mari-
tandis ordinibus ei quae in legitima
tutela pupilli sit permittitur dotis
constituendae gratia a praetore
urbano tutorem petere.
$ 179. Sane patroni filius etiamsi
inpubes sit, libertae efficietur tutor,
quamquam in nulla re auctor fieri
potest, cum ipsi nihil permissum
sit sine tutoris auctoritate agere.
$ 180. Item si qua in tutela legi-
tima furiosi aut muti sit, permitti-
tur ei senatusconsulto dotis con-
stituendae gratia tutorem petere.
$181. Quibus casibus saluam
manere tutelam patrono patronique
filio manifestum est.
$ 182. Praeterea senatus censuit,
ut si tutor pupilli pupillaeue su-
spectus a tutela remotus sit, siue
ex iusta causa fuerit excusatus, in
locum eius alius tutor detur, quo
facto prior tutor amittit tutelam.
DE PERSONIS.
[x $$ 173-184.
granddaughter, has become her sta-
tutory guardian. His sona only
rank as fiduciary guardians, unlike
& patron’s sons, who succeed to the
eame form of guardianship as vested
in their father.
$ 176. For a special and limited
purpose the senate permits even a
patron in his absence to be super-
seded by a substitute; for instance,
to authorize the acceptance of an
inheritance. |
$ 177. The senatusconsult gives
similar permission when a patron's
son is himself a ward.
§ 178. For even before the sena-
tusconsult the lex Julia regulating
the marriages of the various orders
permitted a woman whose statu-
tory guardian, her patron’s son,
was himself a ward, to apply to
the praetor of the city to sub-
stitute a guardian for the pur-
pose of effecting a settlement of her
dower.
§ 179. For a patron’s son even
before the age of puberty is a freed-
woman’s guardian, although unable
to authorize any proceeding, being
himself disabled from acting with-
out his guardian’s authorization.
$180. Also, & woman whose
statutory guardian is a lunatic or
dumb is permitted by the senatus-
consult, for the purpose of settling
her dower, to apply for a substitu-
tive guardian.
$ 181. In which cases the con-
tinued guardianship of the patron
or patron's son is undisputed.
$ 182. The senate further decreed
that if the guardian of a male or
female ward is suspected .of mis-
conduct and removed from office, or
if he alleges valid grounds for de-
clining to act and is relieved of his
functions, a substitute shall be ap-
pointed by the magistrate, and on
his appointment the office of the
former guardian shall determine,
1. § 185-188.] DE ATILIANO TUTORE ET JULIOTITIANO.
$183. Haec omnia similiter et
Romae et in prouinciis obseruantur,
scilicet (ut Komae a praetore) et
in prouinciis à praeside prouinciae
tutor peti debeat.
$184. Olim cum legis actiones
in usu erant, etiam ex illa causa
tutor dabatur, si inter tutorem et
mulierem pupillumwe lege agendum
erat; nam quia ipse tutor in re sua
auctor esse non poterat, alius daba-
tur, quo auctore legis actio pera-
geretur; qui dicebatur praetorius
tutor, quia a praetore urbano da-
batur. sed post sublatas legis ac-
tiones quidam putant hanc speciem
dandi tutoris in usu esse destisse,
alis autem placet adhuc in usu
esse, si legitimo iudicio agatur.
127
$183. These rules are in force
both in Rome and in the provinces,
butin Rome application for the ap-
pointment of a tutor must be made
to the praetor; in the provinces, to
the governor of the province.
$ 184. During the era of litiga-
tion by statute-process [4 $ 10]
another cause of appointing a sub-
stitute was theimminence of statute-
process between the guardian and
the woman or ward; for as the
guardian could not give his autho-
rity in respect of his own suit,
another guardian was appointed to
authorize the proceedings in the
action, who was called a praetorian
guardian, because he was appointed
by the praetor of the city. But
some hold that since the abolition
of statute process this mode of ap-
pointing a guardian ceased to be
used, others maintain that it is still
the practice on the occasion of a
statutory suit. (4 $ 103.)
$179. The law was changed by Justinian, who enacted that no
one could become guardian who had not attained his majority,
1. e. completed twenty-five years of age, Cod. 5, 30, 5.
§ 182. Cf. Inst. Just. 1, 25, 26.
$183. The ambiguity of the Latin language leaves it doubtful
whether in the foregoing paragraphs, $6 178, 176, 180, 182, Gaius
refers to one or several senatusconsults. From D. 26, 1, 17, how-
ever, i& appears that, complura senatusconsulta facta sunt ut in
locum furiosi et muti et surdi tutoris alii tutores dentur: i.e. the
subject often occupied the attention of the senate. The reason was
that the lex Atilia, presently mentioned, had received,.after the
wont of the ancient juriste, a strictly literal interpretation, and was
not deemed to authorize the substitution of a guardian when the
existing guardian was incapacitated.
DE ATILIANO TUTORE, ET EO QUI EX LEGE IULIA ET TITIA DATUR.
$ 185. Si cui nullus omnino tutor $185. Failing every other form
sit, ei datur in urbe Roma ex lege of guardian, at Rome a guardian is
Atilia a praetore urbano et maiore appointed under the lex Atilia by
128
parte tribunorum plebis, qui Atili-
anus tutor uocatur; in prouinciis
uero a praesidibus prouinciarum
(ex) lege Iulia et Titia.
§ 186. Et ideo si cui testamento
tutor sub condicione aut ex die
certo datus sit, quamdiu condicio
aut dies pendet, tutor dari potest ;
item si pure datus fuerit, quamdiu
nemo heres existat, tamdiu ex his
legibus tutor petendus est; qui
desinit tutor esse, posteaquam ali-
quis ex testamento tutor esse coe-
perit.
$187. Ab hostibus quoque tu-
tore capto ex his legibus tutor peti
debet; qui desinit tutor esse, si is
qui captus est, in ciuitatem reuer-
sus fuerit; nam reuersus recipit tu-
telam iure postliminii.
$ 188. Ex his apparet quot sint
species tutelarum. si uero quae-
ramus in quot genera hae species
diducantur, longa erit disputatio;
nam de ea re ualde ueteres dubi-
tauerunt, nosque diligentius hunc
tractatum executi sumus et in edicti
interpretatione et in his libris quos
eX Q. Mucio fecimus. hoc tantisper
sufficit &dmonuisse, quod quidam
quinque genera esse dixerunt, ut
Q. Mucius; alti tria, ut Ser. Sul-
picius ; alti duo, ut Labeo ; alü tot
genera esse crediderunt, quot etiam
Bpecies essent.
DE PERSONIS.
(x. $$ 185-188.
the praetor of the city and the
major part of the tribunes of the
people, called an Atilian guardian :
in the provinces, a guardian is ap-
pointed by the president of the pro-
vince under the lex Julia and Titia.
§ 186. Accordingly, on the ap-
pointment of a testamentary guar-
dian subject to a condition, or on an
appointment limited to take effect
after a certain time, during the
pendency of the condition and be-
fore the expiration of the term, a
substitute is appointed by these
magistrates ; also, when the appoint-
ment of a testamentary guardian is
not subject to a condition, so long
as the succession has not vested, a
temporary guardian may be ob-
tained under those statutes, whose
office will determine as soon as
the testamentary guardianship has
vested.
$187. On the hostile capture of
a guardian the same statutes regu-
late the appointment of a substitute
to continue in office until the return
of the captive ; for if the captive
returns he recovers the guardianship
in virtue of his rehabilitation.
$ 188. The foregoing statement
shows the various forms of guar-
dian: the question of the number
of orders to which these forms may
be reduced involves a long discus-
sion, for it is a point on which the
ancient jurists differed greatly ; and
as I have examined it at length,
both in my interpretation of the
edict and in my commentary on
Quintus Mucius, for the present
occasion it may suffice to observe
that some, as Quintus Mucius, make
five orders ; others, as Servius Sul-
| picius, three ; others, as Labeo, two ;
others make as many orders as there
are forms of guardian.
$ 188. In the time of Justinian there were three forms of guar-
dian,—testamentary, or appointed by will; statutory, or prescribed
1. §§ 189-193.]
DE MULIERUM TUTELA.
“129
by the law in case of intestacy; and magisterial (dativus), or ap-
pointed by the magistrate, in default of a testamentary or statutory
guardian. ‘The other forms of guardian had become obsolete in
consequence of the changes in legislation.
DE MULIERUM TUTELA,
$189. Sed inpuderes quidem in
tutela eese omnium ciuitatium iure
contingit ; quia id naturali rationi
conueniens est, ut is qui perfectae
setatis non sit, alterius tutela rega-
tur. nec fere ulla ciuitas est in qua
non licet parentibus liberis suis in-
puberibus £estamen£o tutorem dare ;
quamuis, ut supra diximus, soli
ciues Romani uideantur liberos suos
in potestate habere.
$190. Feminas uero perfectae
aetatis in tutela esse fere nulla pre-
tiosa ratio suasisse uidetur; nam
quae uulgo creditur, quia leuitate
animi plerumque decipiuntwr et ae-
quum erat eas tutorum auctoritate
regi, magis speciosa uidetur quam.
uera; mulieres enim quae perfectae
aetatis sunt, ipsae sibi negotia trac-
tant, et in quibusdam causis dicis
gratia tutor interponit auctoritatem
suam; sgepe etiam inuitus auctor
fieri a praetore cogitur.
$ 191. Unde cum tutore nullum
ex tutela iudicium mulieri datur;
af ubi pupillorum pupillarumue ne-
gotia tutores tractant, ei post puber-
dem tutelae iudicio rationem red-
t.
$192. Sane patronorum et pa-
rentum legitimae tutelae uim ali-
K
$ 189. The wardship of children
under the age of puberty is pre-
scribed by every legislation, for it
is a dictate of natural reason that
persons of immature years should
be under foreign guidance and con-
trol, and almost all states permit a
perent to nominate a testamentary
guardian for his children ander the
age of puberty, though, as we have
before stated, only citizens of Rome
appear to beinvested with parental
power.
$190. But why women of ma-
ture years should continue in ward-
ship there appears to be no valid
reason; for the common allegation,
that their weakness of judgment
exposes them to the designs of the
fraudulent, and that humanity re-
quires them to be put under the
control and authority of & guar-
dian, seems rather specious than
true, for women above the age of
puberty administer their own pro-
perty, and it is & mere formality
that in some circumstances their
guardian interposes his assent; in
many others, if he refuses, he may be
compelled to withdraw his opposi-
tion by an appeal to the praetor.
$191. Accordingly, a guardian
is not suable on account of admi-
nistration by a woman in wardship ;
whereas the guardian of an infant,
male or female, is liable to be sued
on account of his administration
as Soon as the ward attains to the
age of puberty.
$192. The statutory guardian-
ship of patrons and parents is not
130
quam habere intelleguntur eo quod
hi neque ad testamentum faciendum
neque ad res mancipti alienandas
neque ad obligationes suscipiendas
auctores fieri coguntur, praeterquam
si magna causa alienandarum rerum
mancipi? obligationisque suscipien-
dae interueniat; eaque omnia ip-
sorum causa constituta sunt, ut,
quia ad eos intestatarum mortuarum
hereditates pertinent, neque per
testamentum excludantur ab here-
ditate, neque alienatis pretiosioribus
rebus sueceptoque aere alieno minus
locuples ad eos hereditas perueniat.
. $193. Apud peregrinos non si-
militer ut apud nos in tutela sunt
feminae; sed tamen plerumque
quasi in tutela sunt; ut ecce lex
BitAynorum, si quid mulier contra-
hat, maritum auctorem esse iubet
aut filium eius puberem,
: DE PERSONIS,
[1. $$ 189—193.
purely illusory, as they cannot be
compelled to give their sanction to
a will or to the alienation of man-
cipable property, or to the comple-
tion of a contract, unless there sre
very weighty reasons for the con-
tract or the alienation; but this
rule is in their own interest as
heirs in intestacy, and is designed
to prevent their loss of the estate
by testamentary disposition, or the
diminution of its value by debt or
by alienation of & considerable por-
tion,
$ 193. In other countries, though
not under the same tutelage as at
Rome, women are generally subject
to a quasi tutelage: for instance,
the Jaw of Bithynia requires the
contract of a woman to be sanc-
tioned by her husband or by a sen
above the age of puberty.
As women were capable of administration, the functions of the
guardian, which in the case of infants were either administrative
or sanctionative, in the case of women were confined to sanctioning.
Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem
interponunt: mulierum autem tutores auctoritatem dumtaxat inter-
ponunt, Ulp. 11, 25. (Cf. 2, 80-85, 122.) It is transparent that
the wardship of women after the years of puberty was not designed
to protect their own interests, but those of their heirs apparent,
their agnates. Originally the authorization of the guardian was
not suffieient to validate the will of an independent woman: it
was necessary that she should first break the ties of agnation, and
separate from her family by means of a coemption (with her
guardian’s sanction) and subsequent remancipation and manu-
mission. She then, with the sanction of the manumissor, in his
character of fiduciary guardian, could make a valid will. In the
time of Gaius, Hadrian having abolished the necessity of coemp-
tion, to make a valid will an independent woman only required the
sanction of her guardian, 2 § 112.
When a woman was liberated from the control of her guardian,
the simplest course would have been to declare her dispositions valid
1.$$189-193.] DE MULIERUM TUTELA. 131
without his sanction—to declare her no longer a ward, But with
characteristic conservatism of forms, the Roman legislator, to avoid
the open change, declared the auctoritas still necessary, but made it
compulsory instead of voluntary—gave the ward a power of extort-
mg it from the guardian. So the act whereby a testamentary heir
accepts an inheritance was originally absolutely voluntary: but
when trusts (fidei commissa) were introduced, and the heir as trustee
or fiduciarius by groundlessly refusing to make the necessary
aditio, which in this case was the merest form, could produce
intestacy, and thus deprive the beneficiary, fideicommissarius, or
cestui que trust of the provision destined for him by the bounty
of the testator: instead of declaring the aditio of the heres unneces-
gary to the acquisition of the fortune by the fideicommissarius ; or
that in such a case the beneficiary should be deemed to be a direct
substitutus of the heres; or that the vexatious refusal of the heres
should be deemed to be an aditio and restitutio; the legislator
ordained that the heres should be compelled to make aditio in order
to complete the title, 2 $ 258. Again, the terms of the security
given by the guardian (rem pupilli salvam fore) against dilapi-
dation of the estate of the ward made the responsibility of the
guardian depend on his actual administration ; so that he was not
responsible if the estate went to ruin in consequence of his total
abetention from the performance of his duties, To protect the ward
against this contingency, instead of altering the formula of the
satisdatio, and making the liability of the guardian depend on his
appointment and not on his acting; the legislator compelled him
to proceed to some act of guardianship, in order to bring him under
the unchanged terms of his security. In all these and other cases
a compulsory act was substituted for a voluntary act for the sake of
giving the law an outward appearance of antiquity. At last, at
some period before the epoch of Justinian, the tutelage of women
above the age of puberty had ceased in form as well as in substance, |
and'no sanction of a guardian, whether voluntary or compulsory,
was required, Ihering.
It is to be observed, that as women were gradually enfranchised
from their disabilities, they also forfeited some of their original
privileges. It was a rule of the administration of justice that
while error of fact might be pleaded to defend a person against the
consequences of his own acts or omissions, no one should be allowed
to allege an error of law, Dig. 22, 6, 9, An exception however was
X 2
132 DE PERSONIS. [z. 8$ 194-196.
made in favour of minors, of soldiers, of the utterly uneducated
(rustici) and of women. Against their ignorance of rules of law,
particularly those rules of Civil law which are not, like rules of
Gentile law, the almost self-evident dictates of reason and common
sense, they were relieved by a branch of the praetor's equitable
jurisdiction, called integri restitutio, a power of cancellation and
rescission, in cases of manifest collision between law and equity.
This privilege of women was partially abrogated by a constitution
of the Emperor Leo, a.p. 469; Cod. 1, 18,13. ‘To prevent the
indiseriminate revoeation by women of all their contracts on the
ground of omission or error, be it enacted, that ignorance of law,
whereby a woman is damnified in her right or property, shall only
be a title to relief in those cases where women have heretofore
been expressly excepted from the provisions of any statute.
QUIBUS MODIS TUTELA FINIATUR.
$194. Tutela autem liberantur
ingenuae quidem trium (JUberorum
ture, libertinae uero quattuor, st in
patroni) liberorumue eius legitima
tutela sint; nam ceterae quae al-
terius generis tutores habent, [uelut
Atilianos aut fiduciarios] trium
liberorum | iure tutela liberantur.
. $ 195. Potest autem pluribus
modis libertina alterius generis (tv
torem) habere, ueluti si a femina
manumissa sit; tunc enim e lege
Atilia petere debet tutorem, uel in
prouinc(:is e lege Iul)ia et Titia ;
nam in patronae tutela esse non
potest.
$ 195a. Itemsi (a) masculo manu-
missa (fuerit) et auctore eo coemp-
tionem fecerit, deinde remancipata
et manumissa sit, patronum quidem
habere tutorem desinit, incipit au-
tem habere eum tutorem a quo
manumissa est, qui fiduciarius
dicitur,
$ 195 b. Item si patronus eiwsue
$194. Guardianship is terminated
for a freeborn woman by title of be-
ing mother of three children, for a
freedwoman under statutory guar-
dianship by being motherof fourchil-
dren: those who have other kinds
of guardians, Átilian, for instance,
are liberated from wardship by ac-
quiring the title of being mothers
of three children.
$ 195. There are varipus modes
by which a freedwoman may have
the other kinds of guardian: for
instance, on manumission by a
woman, when she must request a
guardian under the lex Atilia, or
in the provinces under the lex
Julia and Titia, as a female patron
cannot be guardian to a freedman
or freedwoman : also on manumis-
sion by a male, if with his sanction
she makes a coemption, and then
is remancipated and manumitted,
for the patron then ceases to be
guardian, and is replaced by the
second manumitter, who is called
& fiduciary guardian. Also on the
1. § 194~-196.] QUIBUS MODIS TUTELA FINIATUR,
filius in adoptionem se dedit, debet
liberta e lege Atilia uel Iulia et Titia
tutorem petere.
$ 195 c. Similiter ex isdem leg-
ibus petere debet, tutorem liberta, si
patronus decesserit nec ullum uirilis
sexus liberorum in familia reli-
querit,
$ 196. Masculi autem cum puberes
esse coeperint, tutela liberantur.
Puberem autem Sabinus quidem et
Cassius ceterique nostri praecep-
tores eum esse putan?, qui habitu
corporis pubertatem ostendit, id
est eum qui generare potest; sed in
his qui pubescere non possunt,
quales sunt spadones, eam aetatem
esse spectandam, cuius aetatis pu-
beres fiunt; sed diuersae scholae
auctores annis putant pubertatem
aestimandam, id est eum puberem
esse existimant gui | XIII annos
expleutt.
133
adrogation of her patron or his son
she must demand a guardian under .
the lex Atilia or Titia, and in com-
pliance with the same laws she
must demand a guardian on the de-
cease of her patron without leaving
any son in the family.
§ 196. For males the attainment
of the age of puberty is a release
from wardship. Puberty, accord-
ing to Sabinus and Cassius and the
other authorities of my school, de-
pends on physical development, that
18, on capacity of generation; or in
case of impotence on the comple-
tion of [eighteen years, or] the age
which even in the latest constitu-
tions usually implies capacity of
generation. The other school hold
that puberty is to be exclusively
measured by age, that is to say,
that it should always be deemed to
be attained on the completion by &
male of his fourteenth year.
$ 196. All jurists agreed that in the case of the spado (natural
impotence) some fixed date must be assumed as the conventional
period of puberty. The Sabinian rule appears to be preserved in a
passage of Paulus: Spadones eo tempore testamentum facere pos-
sunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4a, 2.
Fourteen was assumed to be the average age of puberty; but it
was too early, even in the southern climes subject to Roman legis-
lation, for & minority of constitutions which advance more slowly
to maturity. Eightcen was supposed to be sufficiently postponed
to include most of these cases of retarded development. "We have
already, in treating of adrogation, § 106, commentary, met with
the phrase, plena pubertas, denoting eighteen years of age. We
may suspect that in Paulus we should read, quo plerique pubescunt
qui tardius pubescunt; and in Gaius, cujus aetatis puberes fiunt
qui tardius puberes fiunt; the similarity of ending having caused
the omission of the clauses by the transcribers.
This paragraph is the first which refers to the existence of rival
schools among the Roman juris auctores, to which we shall find
frequent allusions in the remainder of the treatise. This divergence
134 0l DE PERSONIS. [r.$$ 194-196.
of the schools dates from the first elevation of the jurist to a
species of public functionary, namely, from the reign of Augustus,
in whose time, as we have seen, § 7, commentary, certain jurists
began to be invested by imperial diploma with a quasi legislative
authority. In his reign the rival oracles were Antistius Labeo and
Caius Ateius Capito: Hi duo primum veluti diversas sectas fece-
runt, Dig. 1, 2, 47. ‘ The first founders of the two opposing sects.’
From Labeo’s works there are 68 extracts in the Digest, and
Labeo is cited as an authority in the extracts from other jurists
oftener than any one else except Salvius Julianus. From Sem-
pronius Proculus, a disciple of Labeo, and of whom 87 fragments
are preserved in the Digest, the school derived its name of Pro-
culiani, Other noted jurists of this school were Pegasus, in the
time of Vespasian; Celsus, in the time of Domitian, who gave
rise to the proverb, responsio Celsina, a discourteous answer, and
of whom 141 fragments are preserved; and Neratius, of whom
64 fragments are preserved. To the other school belonged
Masurius Sabinus, who flourished under Nero, and from whom
the sect were called Sabiniani. To the same school belonged Caius
Cassius Longinus, who flourished under Nero and Vespasian, and
from whom the sect are sometimes called Cassiani: Javolenus
Priscus, of whom 206 fragments are preserved: Salvius Julianus,
who reduced the praetorian edict to a permanent form in the reign
of Hadrian, and of whom 456 fragments are preserved: Pomponius,
of whom 578 fragments are preserved: Sextus Caecilius Africanus,
celebrated for his obscurity, co that Africani lex in the language of
lawyers meant lex difficilis, of whom 181 fragments are preserved :
and, lastly, our author, Gaius, who flourished under Hadrian,
Antoninug Pius, and Marcus Aurelius, and from whose writings
535 extracte are to be found in the Digest.
If we now inquire whether this divergence of schools waa based
on any difference of principle, the answer is, No: on none, at least,
that modern commentators have succeeded in discovering: it was
merely a difference on a multitude of isolated points of detail. We
are told indeed that the founders were men of dissimilar characters
and intellectual dispositions: that Labeo was characterized by bold-
ness of logic and a spirit of innovation; while Capito rested on
tradition and authority, and inclined to conservatism, Dig. 1, 2, 47;
but it is altogether impossible to trace their opposing tendencies in
the writings of their successors: and we must suppose that the
L$$194-196.] SCHOLAE JURISPRUDENTIUM. 135
intellectual impulse given by Labeo was communicated to the fol-
lowers of both schools of jurisprudence. But though, as we have
stated, no difference of principle was involved, each school was
accustomed. to follow its leaders with much servility; and it is
quite an exception to find, on a certain question, Cassius, a member
of the Sabinian school, following the opinion of Labeo; while Pro-
culus, who gave his name to Labeo’s school, preferred the opinion
of Ofilius, the teacher of Capito, 8 § 140. Controversies between
the two schools are referred to by Gaius in the following passages
of his Institutes: 1, 196; 2, 15, 37, 79, 128, 195, 200, 21€-
222, 281, 244; 8, 87, 98, 108, 141, 167-8, 177-8; 4, 78-9,
114, 170.
We may briefly mention some of the most illustrious jurists who
flourished subsequently to the era of Gaius. Aemilius Papinianus
flourished under Marcus Aurelius and Septimius Severus, and was
murdered by the order of Caracalla : 601 extracts from his writings
are contained in the Digest. It was perhaps due to the transcend-
ent genius, or at least to the extraordinary reputation, of Papinian,
which made him seem too great to be reckoned any man's follower,
that we cease henceforth to hear of opposing schools of jurispru-
dence. Papinian appears to have been stationed at York, with the
function of praefectus praetorio, so that England may claim some
slight connection with the brightest luminary of Roman law.
A disciple and colleague of Papinian was Domitius Ulpianus,
murdered by the praetorian soldiery, whose domination he resisted,
in the presence of the Emperor Alexander Severus : 2464 fragments,
composing about a third of the whole Digest, are taken from his
writings. An epitome of his Liber Singularis Regularum is still
extant in a manuscript of the Vatican Library, and is the work
referred to when, without mentioning the Digest, we cite the
authority of Ulpian.
Another disciple and colleague of Papinian was Julius Paulus, of
whose writings 2081 fragments are preserved in the Digest, form-
ing about a sixth of its mass. An epitome of his treatise called
Sententiae Receptae is found in the code of Alaric 2, king of the
Visigoths; and it is to this book that we refer when we simply
cite the authority of Paulus.
A disciple of Ulpian's was Herennius Modestinus, of whom 844
extracts are contained in the Digest. After Modestinus the lustre
of Roman jurisprudence began to decline. (For a detailed account
136 . DE PERSONIS.
[1. §§ 197—200.
of the Roman jurists, see Roby’s Introduction to the Digest,
chs. vi-xvi.)
DE CURATORIBUS,
. $197. | aetatem perue-
nerit, in qua res suas tueri possit ;
Sicuti apud peregrinas gentes custo-
diri superius indicauimus,
$198. Ex isdem causis et in
prouinciis & praesidibus earum cura-
tores dari solent.
$ 197. After release from ward-
ship the estate of a minor is ma-
naged by & curator until he reaches
the age at which he is competent
to administer his own affairs, and
the same rule obtains in other
nations, as we have already men-
tioned.
$ 198. Under similar circum-
stances the president of a province
appoints a curator by the constitu-
tion of Marcus Aurelius.
DE SATISDATIONE TUTORUM VEL CURATORUM.
$199. Ne tamen et pupillorum
et eorum qui in curatione sunt, ne-
gotia & tutoribus curatoribusque
consumantur aut deminuantur,
curat praetor, ut et tutores (et)
curatores eo nomine satisdent.
$ 200. Sed hoc non est per-
petuum ; nam et tutores testamento
dati satisdare non coguntur, quia
fides eorum et diligentia ab ipso
testatore probata est; et curatores,
ad quos non» e lege curatio pertinet,
sed (qui) uel & consule uel a prae-
tore uel a praeside prouinciae dan-
tur, plerumque non coguntur eatis-
dare, scilicet quia satis honest elect:
sunt.
$ 199. To protect wards and
minors from the destruction or
waste of their property by guar-
dians and curators, it is the func-
tion of the praetor to require guar-
dians and curators to give security
for due administration.
§ 200. But this is not without
exception, for testamentary guar-
dians are not. compelled to give
security, as their integrity and vigi-
lance have been approved by the
testator ; and curators who have
not been appointed by any statute,
but by the nomination of a consul
or praetor or president of a pro-
vince, are generally not required to
give security, their selection being
deemed sufficient evidence of their
trustworthiness.
In English jurisprudence there is no distinction corresponding to
that between tutor and curator, infant (impubes) and minor (ado-
lescens). Infant and minor are in English synonymous : guardian-
ship continues to the attainment of majority, i.e. to the comple-
tion of 21 years of age; and after that the young of both sexes are
L$ 197-200.] DE CURATORIBUS. 137
eonsidered to be capable of taking care of themselves, and are
free from further control. At Rome wardship (tutela) ceased at
puberty, or, as the law came to be defined, at the age of 14 for
males and 12 for females, ages at which the young manifestly
continue to stand in need of guidance and protection ($ 196 Inst.
Just. 1, 22).
Such protection was provided for them partly by two statutes,
partly by praetorian legislation. (1) The lex Plaetoria was as
old as Plautus, who makes a youth exclaim: Tum lex me perdit
quinavicenania ; metuunt credere omnes, Pseudolus, 1, 8, 69. ‘The
statute with its five and twenty years prevents my getting credit.’
It made a criminal offence, and subject to a criminal prosecu-
tion (judieium publicum, Cie. De Nat. Deor. 3, 80), what Cicero
ealls circumscriptio adolescentium, De Off. 8, 15; i.e. over-
reaching and circumventing persons below the age of 25. Such
is Savigny's interpretation of judicium publicum, Vermischte
Schriften, 18. Ihering maintains that judicium publicum de-
notes in this passage not a criminal prosecution but an actio
popularis; i.e. a civil action that could be instituted not only by
the Minor but by a common Informer: and he quotes D. 26, 10, 1, 6:
Consequens est ut videamus qui possint suspectos (tutores) postulare,
et sciendum est quasi publicam esse hane actionem, hoc est, omni-
bus patere, and D. 12, 2, 80, 3, where publica actio means actio
popularis, Geist des Rómischen Rechts, § 52. The circumscrip-
tion of a minor, like maladministration by a guardian, rendered the
person convicted thereof infamis. The statute provided, apparently,
that a contractor with a minor might secure himself against the
penalties of the law, if a eurator were nominated by the praetor to
advise the minor in respect of the special transaction.
(2) As the lex Plaetoria was only applicable in cases of fraud
(dolus malus, Cic. De Off. 3, 15), the protection it gave to minors
was inadequate: accordingly, the praetor proclaimed in his edict:
that he would relieve minors who had been damaged in consequence
of mexperience and improvidence by rescission and cancellation of
the proceeding (in integrum restitutio) To obtain this relief it
was not necessary to prove any fraud on the part of the person
who contracted with the minor.
(3) A person who wished to bring an action against a minor
eould compel him to obtain from the praetor a curator for the
purpose of defending the particular suit; whose office ceased as
138 . DE PERSONIS. [1. $$ 197-200.
soon as the special litigation terminated. Marcus Aurelius, under
whom Gaius flourished, enacted that any minor who chose should
be able to obtain from the praetor a general curator (generalis
curator), who then should be charged with the general admini-
stration (generalis administratio) of his estate, Capitolinus, 10.
In view of this option of the minor, Justinian could still say:
Inviti adolescentes curatores non accipiunt praeterquam ad litem,
Inst.1,28,2. ‘Unless they choose, minors need not have a curator,
except for a suit A minor who had a curator could not aliene
without the consent of his curator: he could incur an obligation
without the consent of his curator, subject to his right of in
integrum restitutio. Even the existence of a curator did not
deprive the minor of his right of restitution, but of course 1t could
not be obtained so readily as when he acted without the advice of a
curator.
The tutor and curator were entirely separate functionaries: when
women were under perpetual tutelage, à woman might have both
a tutor and a curator. The curator of a minor must be dis-
tinguished from an agent (procurator) a person invested with
certain rights and duties, which will be explained when we examine
the different kinds of contract. An agent is governed by the in-
structions (mandatum) of his principal: a minor is under the direc-
tion of his curator: the employment of an agent is a private
matter, purely voluntary on the part of the principal; the
curator is a public functionary, and having one is to a certain
extent involuntary on the part of the minor.
Besides minors, lunatics and prodigals of whatever age were
committed to the charge of curators, The curatio of lunatics and
prodigals is, indeed, older than that of minors, being regulated by
the Twelve Tables, which directed that the nearest agnate should
be committee of a lunatic, and manage the estate of an interdicted
prodigal. In later times it was usual for the praetor or praeses pro-
vinciae to appoint a curator after quest (ex inquisitione). Paulus
has preserved the form of words in which the psodigal was interdicted :
8,4 a, 7. ‘By customary law the praetor interdicts a prodigal
from the administration of his property in the following terms: As
thy profligacy is wasting the estate of thy father and ancestors,
and bringing thy children to destitution, I therefore interdict thee
from the control of thy patrimony, and from all disposition of
property.’
1 $$197-200.] IN INTEGRUM RESTITUTIO. . 139
From $ 189 it might appear that Gaius referred the institution
of guardianship to the code of Jus Gentium. We have, however,
quoted from the Digest, § 142, a passage which ascribes it to Jus
Civile: and, indeed, no institution containing numerical definitions
(fixing, for example, on 12 and 14 for the years of puberty of the
two sexes, and 25 for the year of majority of both sexes, without
regard to individual development of intelligence) can be supposed
to belong to natural law, if natural law is the less arbitrary element
of the positive code. Moreover, the law of guardianship has been
moet variable, not only if we look to different countries, but also if
we look at different periods in the same country; and the praetor
or chancellor or other authority that has had the supervision of
guardians has always exercised a great latitude of discretion ;
features which again forbid us to ascribe the rules of wardship to
any comparatively immutable code of nature. A striking illustra-
tion and proof of the civil character of the rules of wardship in
Roman law is furnished by the fact that though a promise by a
ward without his guardian's authority has no binding force, 1. e.
produces no civilis obligatio, in other terms is not actionable,
except so far as he is thereby enriched; yet, irrespectively of the
gain or loss of the ward, Roman jurisprudence recognized that his
promise produced a naturalis obligatio, for.it ruled that such pro-
mise might be the basis of a suretyship, 8 $ 119, and might extin-
guish a previous debt by novation, 8 $ 176; and both suretyship
and novation are institutions which are essentially accessary ; that
is to say, each implies the existence of two distinct obligations,
either civil or natural, one assuring and the other assured, or one
transforming and the other transformed. If wardship had been
regarded as a natural or gentile institution, then the promise of
the ward would have had no validity by the gentile code (naturalis
obligatio), and would have been incapable of being confirmed by
suretyship or transformed by novation. |
In integrum restitutio, a branch of the praetor’s equitable juris^
diction, and one of the-most remarkable cases of his cognitio extra-
ordinaria, has been mentioned more than once, and deserves here
a brief explanation. Restituere in a general sense denotes any
undomg of a wrong, any replacement of a person or his right in
his or its original condition, whether by the voluntary act of the
wrongdoer, or after action brought, and then either at the invi-
tation of the judge (in virtue of the clause, ni restituat, 4 § 47), or
140 | DE PERSONIS. [1. $$ 197-200.
in execution of a judicial sentence. But in the phrase we are
examining it denotes the act, not of a private party, but of a
judicial authority. In integrum restitutio is the restitution by the
praetor of a person or his right to his or its original uninjured con-
dition, in cases when no remedy is to be obtained either from the
rigorous rules of the civil law or jus strictum (e.g. by civilis actio),
or even from equity as administered by the ordinary judges in the
ordinary forms (e.g. by exceptio or bonae fidei actio). The inter-
position in such cases of the highest Roman minister of justice
resembles that of the English chancellor when a suitor is unable to
obtain redress by the rules and forms of the courts of common law.
The function of overruling the ordinary course of law where it
eollided with equity was only confided to the highest judicial
authority, and even in his hands was governed, at all events
in later times, by precise rules of positive law. Five grounds or
titles (justae causae) to extraordinary relief (extraordinarium auxi-
lium) were recognized and enumerated in the edict, Dig. 4, 1:
intimidation (metus), fraud (dolus malus), absence, error, minority
(aetatis infirmitas). Two, however, of these titles, fraud and intimi-
dation, had additional remedies in the ordinary course of procedure
(ordo judiciorum), where they were recognized as grounds of excep-
tion and personal action. First a praetor called Cassius introduced
the exceptio doli, D. 44, 4, 4, 33. Then a praetor called Octavius
introduced the actio and exceptio metus mentioned by Cicero,
Verr. 2, 8, 65, where the actio metus is called Formula Octaviana.
Lastly Aquilius, colleague of Cicero, introduced the actio doli, Cic.
de Natura Deorum, 8, 30.
The chronological order of the remedy by Action and the
remedy by Restitution is disputed. Savigny holds that the
remedy by Restitution was older than the remedy by. Action,
$112, $191, $ 199; while Vangerow holds that the remedy by
Action was older than the remedy by Restitution, $ 185. The
latter opinion seems more consistent with the statement of Cicero,
De Off. 3, 14.
- There are three conditions of Restitution: (1) The first condi-
tion is a Laesion by the operation of civil law, i.e. a disadvan-
tageous change in civil rights or obligations brought about by
some omission or disposition of the person who claims relief. This
disadvantage may either consist in positive loss of acquired property,
er in missing a gain which would not have involved, on the part of
1.§ 197-200. | IN INTEGRUM RESTITUTIO. 141
anther, a positive loss of acquired property. An instance of such
a laesion would be the loss of property by omitting to interrupt
ausucapio, or by omitting to claim à succession (aditio, agnitio),
or by entering into a foolish bargain.
(2) A second condition is some special or abnormal position of
the person who claims relief when such special circumstance is
the cause of the loss which he has suffered. Thus a minor may
be relieved against an injudicious bargain, but not against the
casual destruction of the thing he has purchased, for this loss was
not occasioned by his minority or inexperience. Such abnormal
positions (justae causae) are compulsion, fraud, minority, absence,
error.
(3) A third condition of relief is the absence of various disen-
titling circumstances. Thus relief is granted against the effect
of lawful omissions or dispositions, but not against the effect of
delicts ; at all events not of dolose or intentional delicts, but only
of eulpose delicts, 1. e. of torts committed from negligence. Again
the extraordinary relief of in integrum restitutio is not granted
when the courts of civil law can administer an adequate remedy.
Originally capitis minutio of a defendant was ground for a resti-
tution, 8 $ 84; but this ceased at an early period to be a genuine
case of restitution ; for rescission of the adrogation, adoption, eman-
cipation, whereby a person's debts were extinguished, was granted
as a matter of course without any previous investigation (causae
cognitio), and without any period of prescription like that which
limited the right to pray for restitution.
This was, originally, annus utilis, and in the time of Justinian,
quadriennium continuum or 4 calendar years, which begin to run,
not from the date of the Laesion, but from the termination of the
Causa, i.e. the abnormal position— minority, absence, compulsion,
deception, error—whereby the Laesion was occasioned. Such at
least is Savigny's opinion. Vangerow holds that, except in
Minority and Absence, prescription begins to run from the date
of Laesion, 4 §§ 110-113 comm. The terms of the Edict in the
case of Absence were as follows: they consist of three clauses :
(1) [Absence of plaintiff]
If any person’s property has been lost in the absence of the
proprietor whether from fear, or in the public service without his
fraud, or while he was in bonds or in slavery or in the power
142 | DE PERSONIS, [r.$$ 197-200.
of enemies; or if any right of action of any such person has been
lost by prescription :
(2) [Absence of defendant]
or if another person has acquired any property by usucapion or by
non-user of the proprietor; or has become non-suable by prescrip-
tion by reason of having been absent and undefended, or by having
been in bonds, or by having given no opportunity of being sued,
or by having been exempt from being sued without consent, and
having had no suable representative, or by having obtained the
intervention of a magistrate, or by a magistrate having hindered
the suit without fraud of the plaintiff: to repair such loss I will
revive the plaintiff's right of action at any time within a year
from the date when it first becomes possible to apply to me for
relief ;
(3) [Generalis clausula] :
and I will do the same if any other adequate cause shall be shown
so far as statutes, plebiscites, senatusconsults, edicts, and imperial
decrees shall permit. Savigny, $ 325.
Of the five titles to restitution that we have enumerated, four,
namely, intimidation, fraud, absence, error, implying equality of
rights in all parties, belong to the law of Things; title by minority,
implying a privileged class or inequality of nghts, belongs to the
law of Persons.
As we shall have occasion in the next book to use the expression
Rerum universitas, it may seem appropriate, before we quit the law
of Persons, to give some Explanation of the contrasted term, Per-
sonarum universitas, A University of persons in the private code is
a fictitious or juristic person, composed generally by the union of a
number of individuals, and capable like a natural individual (singu-
laris persona) of the various rights and duties of property, that is
to say, of dominium, servitus, potestas, patronatus, colonatus, obli-
gatio; and the power of suing and being sued.
Some Universities have a visible existence in a number of indi-
vidual members, and are then called Corporations. An essential
ineident of Corporations is that their rights are not vested in the
aggregate of individuals, but in the ideal whole, regarded as distinct
from the members of which it is composed, Examples of such Cor-
porations are municipalities (civitas, municipium, respublica, com-
munitas), colleges of priests, of Vestal Virgins, corporations of
1 §197-200.] PERSONARUM UNIVERSITAS. 143
subordinate officials, e.g. lictors, notaries (scribae, decuriae), in-
dustrial guilds, e.g. smiths, bakers, potters, shipowners, mining
companies (aurifodinarum, argentifodinarum, salinarum, societas),
contractors for the revenue (vectigalium publicorum societas), social
clubs (sodalitates, sodalitia), friendly societies (tenuiorum collegia).
Other juristic persons, not so visibly embodied in any natural
individuals, e.g. churches, hospitals, almshouses, or any other be-
neficent aims personified, are called, not Corporations but, Foun.
dations.
The state as a juristic person, invested with rights of property,
was called in the time of the republic /Erarium. Under the first
emperors, when the public treasure was divided between the em-
peror and the senate, the senate, as a juristic person representing
the republic, was called /Erarium, while the emperor was called
Fiseus, At an uncertain date, about the time of Gaius, when all
power was undisguisedly absorbed by the emperor, and the public
chests were united, the terms Afrarium and Fiscus lost their dis-
tinctive meanings, and we find them used convertibly in the compi-
lations of Justinian.
Juristie persons, though invested with rights of property, being
mere fictions or ideal unities, are incapable of making a disposition
(declaration of intention); for how can a fiction have an intention ?
It is true that slaves could acquire property and active obligations
for their proprietors; but a slave could not aliene property, nor
incur à passive obligation, nor enter into a bilateral contract, nor be
a party to a suit: and therefore Universities could not make such
dispositions by means of their slaves. In this respect they resemble
infants and lunatics ; and as infante and lunatics must be represented
by their guardians and curators, so juristic persons must be repre-
sented by the agents designated and defined by their constitution.
The temporary representative of a Corporation for the purpose
of sumg and being sued, was called Actor; a permanent repre-
sentative for this purpose was called Syndicus, D. 8, 4, 1. The
constitutions of juristic persons are too various to admit of any
general definition. In towns the supreme direction and represen-
tation belonged to the Senate (curia, ordo). A meeting of two-
thirds of the whole number of members represented the whole
senate, and the vote of the majority in such a meeting was the
decision of the senate,
Although a Universitas is said to hold common property, the
142 p DE PERSONIS. — ^"' [r$$197-200.
relation of the members of a Universitas must nob be identified with
that of Coproprietors (communio). A coproprietor is the separate
proprietor of an undivided ideal portion, which he can aliene, mort-
gage, and otherwise dispose of ; and which, by requiring a partition
(actio communi dividundo), he can always reduce to a real portion :
whereas the whole of the common property can only be dealt
with if the coproprietors are unanimous. Members of a Univer-
sitas, on the contrary, cannot demand a partition; and dispo-
sitions of the property of the Universitas can only be made, and
can always be made, by the vote of a majority of two-thirds of the
members.
Every juristic person was originally incapable of being instituted
successor (heres) as Pliny mentions in the case of municipalities :
Nec heredem institui nec praecipere posse rempublicam constat.
Epist. 5, 7. ‘Neither successions nor legacies by praeceptio (which
imply that the legatee is also heir, 2 $ 217) can be left to a town.’
Juristic persons were not subject to this incapacity because they
were personae incertae, 2 $ 238, for they are personae certae, but
because, being fictions, they were incapable of aditio, which involves
intention, and excludes representation. First the senate, disre-
garding this difficulty, allowed municipalities to be instituted suc-
cessors by their own liberti, Ulpian 22, 5: and subsequently the
Emperor Leo, a.p. 469, gave to municipalities the capacity of being
instituted successor by any testator, Cod. 6, 24,12; cf. 2,196. No
general enactment extended this capacity to all Corporations, but
some received it as a special privilege.
Originally towns, like other juristic persons, were incapable of
taking bequests (legata) but subsequently towns were declared
capable by Nerva and Hadrian, Ulpian 24, 28; Gaius 2 $195 : and
this capacity was extended to Collegia and Templa, D. 34, 5, 20,
and probably to all juristie persons. Towns were also capable of
taking successions by fideicommissum, Ulpian 22, 5.
Under Christian legislation Pious Foundations (pia corpora) were
made capable of taking hereditas and legatum: and devises of
hereditas and legatum, that would otherwise have been void by the
rule avoiding devises to incerta persona, e.g. a devise to the poor of
& town who, not forming & corporation, were not persona certa,
acquired validity from the pious purpose of the disposition.
Some juristic persons have special privileges; for instance, the
Fiscus has privileges over other creditors. Sometimes the indi-
1$$197-200. PERSONARUM UNIVERSITAS. 145
vidua] members have certain privileges; for instance, the rank of
municipal senator (decurio) was hereditary and the senate formed a
kind of caste.
The origin and extinction of a juristic person requires the assent
of the sovereign. The special privileges and incapacities which we
have indicated, by their analogy to status, may perhaps justify the
mention of Universities in the law of Persons. Savigny, $$ 85-102.
BOOK II.
DE REBUS SINGULIS ET DE RERUM
UNIVERSITATIBUS.
DE RERUM DIVISIONE.
$ 1. Superiore commentario de
twre personarum | exposuimus; mo-
do uideamus de rebus ; quae uel in
nostro patrimonio sunt uel extra
nostrum patrimonium habentur.
$ 2. Summa itaque rerum diuisio
in duos articulos diducitur: nam
aliae sunt diuini iuris, aliae humani.
$ 3. Diuini iuris sunt ueluti res
sacrae et religiosae.
$ 4. Sacrae sunt quae diis superis
consecratae sunt; religiosae quae
diis Manibus relictae sunt.
§ 5. Sed sacrum quidem hoc solum
existimatur quod ex auctoritate
populi Romani consecratum est,
ueluti lege de ea re lata aut senatus-
consulto facto.
$6. Religiosum uero nostra uo-
luntate facimus mortuum inferentes
in locum nostrum, si modo eius
mortui funus ad nos pertineat.
$ 7. Bed in prouinciali solo placet
plerisque solum religiosum non fieri,
§ 1. In the preceding book the
law of persons was expounded; now
let us proceed to the law of things,
which are either subject to private
dominion or not subject to private
dominion.
$ 2. The first division of things
is into two classes: things subject
to divine dominion, and things sub-
ject to human dominion.
$ 3. Subject to divine dominion
are things sacred and things reli-
gious.
$ 4. Sacred things are those con-
secrated to the gods above; reli-
gious, those devoted to the gods
below.
$ 5. Sacred things can only be-
come so with the authority of the
people of Rome, by consecration in
pursuance of a law or a decree of
the senate.
$ 6. A religious thing becomes so
by private will, when an individual
buries & dead body in his own
ground, if the burial is his proper
business.
$ 7. On provincial soil, accordi
to most authorities, as the dominion
1.851-14.]
quia in eo solo dominium populi
Romani est uel Caesaris, nos autem
possessionem tantum uel usumfruc-
tum habere uidemur ; utique tamen
etiamsi non sit religiosus, pro re-
ligioso habetur.
$ 7a. Item quod in prouinciis
non ex auctoritate populi Romani
consecratum est, proprie sacrum
non est, tamen pro sacro habetur.
$ 8. Sanctae quoque res, uelut
muri et portae, quodammodo diuini
iuris sunt.
$ 9. Quod autem diuini iuris est,
id nullius in bonis est ; id uero quod
humani iuris est, plerunque alicu-
tus in bonis est; potest autem et
nullius in bonis esse; nam res here-
ditariae, antequam aliquis heres ex-
tstat, nullius in bonis sunt.
§ 9a. ——
(8 fere uersus in C legi nequeunt.)
| *e domino.
$10. Hae autem quae humani
juris sunt, aut publicae sunt aut
priuatae.
11. Quae publicae sunt, nullius
videntur in bonis esse ; ipsius enim
uniuersitatis esse creduntwr. priua-
tae sunt quae singulorum hominum
DE RERUM DIVISIONE.
147
belongs to the people of Rome or
the emperor, and individuals only
have possession or usufruct, such
places, though not properly reli-
gious, are quasi-religious.
$ 7a. Just as provincial soil, in
default of the authorization of the
people of Rome, is rendered by
consecration not sacred, but quasi-
sacred.
§ 8. Sanctioned places are to a
certain extent under divine domi-
nion, euch as city gates and city
walls.
§ 9. Things subject to divine
dominion are exempt from private
dominion; things subject to human
dominion are generally subject to
private dominion, but may be other-
wise: for an inheritance before a
successor is ascertained has no actual
proprietor.
§ 10. Things subject to human
dominion are either public or pri-
vate.
$11. Things public belong to
no individual, but to a society or
corporation ; things private are sub-
ject to individual dominion.
DE REBUS INCORPORALIBUS.
$12. Quaedam praeterea res cor-
porelee sunt, quaedam in(corpor-
“ 13. Corporales hae (sunt) quae
tangi possunt, uelut fundus homo
uestis aurum argentum et denique
aliae res innumerabiles.
§ 14. Iucorporales eunt quae tangi
non possumt, qualia sunt ea quae iure
consistunt, sicut hereditas, usus-
fructus, obligationes quoquo modo
contractae. nec ad rem per(ttnet,
quod in hereditate res corporales
om)tinentur et fructus qui ex fun-
$12. Again, things are either
corporeal or incorporeal.
$ 13. Things corporeal are tan-
gible, as land, a slave, clothing, gold,
silver, and innumerable others.
$ 14. Things incorporeal are in-
tangible ; rights, for instance, such
as inheritance, usufruct, obligation,
however contracted. For though
&n inheritance relates to things
corporeal, and the fruits of land en-
joyed by a usufructuary are corpo-
L 2
148
do percipiuntwr, corporales sunt, et
quod ex aliqua obligatione nobis
debetur, id plerumque corporale
est, welutt fundus homo pecunia;
nam ipsuin ius successionis et ipsum
ius u£endi fruendi et ipsum ius
obligationis incorporale est. eodem
numero sunt iura praediorum urba-
|norum et rusticorwm.
altius tollendi |
uicini aed—non extollen
I——
luminibus
di, ne lu-
minibus uicini officiatur. | item flu-
minum et stilicidiorum ius, ut
in aream —|
ius aquae ducendae —
$ 14a. aut mancipit sunt
aut nec mancipii. | Mancip#i sunt
litem aedes in Italico solo
| seruiltutes praedio-
rum urbanorum nec mancipié sunt. |
DE REBUS SINGULIS.
(im. $$ 1-14
real, and obligations generally relate
to the conveyance of something
corporeal: land, slaves, money; yet
the right of succession, the right of
usufructuary enjoyment, and the
right of the contractor, are incor-
poreal. fo are the rights attached
to property in houses and land. The
following are rights attached to
property in houses: the right of
raising a building and thereby
obstructing the lights ofa neighbour-
ing building; theright of prohibiting
& building being raised, so that one’s
lights may not be interfered with ;
the right of letting rain water fall
in a body or in drops on a neigh-
bour’s roof or area; the right of
having a sewer through a neigh-
bour’s area, or a window in a neigh-
bour's wall (cf. Epit.2, 1, 3). The
following are rights attached to
property in land: iter, a right of
way on foot or horseback ; actus, a
right of way for ordinary carriages ;
via, & right of paved way for heavy-
laden waggons; pecoris ad aquam
appulsus, a right of watering cattle ;
aquae ductus, a right of conveying
water through the tenement of
another.
§14a. Things are farther divided
into mancipable and not mancipable;
mancipable are land and houses in
Italy; tame animals employed for
draught and carriage, as oxen,
horses, mules, and asses; servitudes
attached to property in land; but
servitudes attached to property in
houses are not mancipable.
Having treated of the law of Persons (unequal rights), we proceed
to the law of Things (equal rights), and the first right which Gaius
intends to discuss is the right called Dominion.
Seduced, however,
by an ambiguity of the word Res, which signifies either a right or
the subject of a right, his opening statements ($5 12, 18, 14) are
deplorably confused.
In order to see our way, let us first examine Res as denoting the
i. $$ 1-14.] DE RERUM DIVISIONE. 149
Subject of a nght. Every right implies, as we have stated, an
obhgation ; and every right or obligation implies at least two per-
sons, one of whom has the right while the other has the obligation.
The immediate oBjECT of every right is an act or forbearance of
the person who has the obligation. But the act or forbearance
generally relates to some body, that is, to some tangible portion of
the external world, whether a thing or a person. This body, accord-
ingly, may be called the mediate, indirect, or secondary Object of
the right, or, in the nomenclature we have adopted, its sUBJECT.
The subject of a right, however, is not always a body; it may be
corporeal or incorporeal. For instance, dominion over land is a
nght to forbearance on the part of all the world from molestation
of the owner in dealing with the land. A servitude, say a right of
way, is a right to forbearance on the part of all the world from
molestation of the person entitled when he passes over certain land.
A contractual right is a right to a positive act or performance on
the part of a determinate person, say, to the conveyance or delivery of
a certain piece of land. In these cases, land, the subject or secondary
object of the right, is something corporeal. So, too, when a third
person is the subject of a right; for instance, a child or a gladiator,
8 § 199, in the possession (detention or custody) of the parent or
employer, and whose removal from such possession engenders in the
removing party an obligation ex delicto. But in primordial rights,
the subject, at least as distinguished from the two parties in whom
the right and obligation respectively vest, is something incor-
poreal. A man has a right to forbearance on the part of all the
world from molestation in his life, health, locomotion, honour.
These subjects of the right are incorporeal. Other nghts, appa-
rently, have no determinate subject, corporeal or incorporeal, to
which they are correlated. In a right to the services of a menial
or gladiator, for instance, it would be hard to indicate any subject
or secondary object to which the obligation of the menial or
gladiator relates.
It is clear that no division of Subjects of right will coincide with
a classification of Rights: while, if we divide Res in the meta-
physical sense of the World, or Being, or Existence (a sense sug-
gested by the differentiae, corporalis, and incorporalis), Dominion,
hke all other rights, will be a member of the branch res incor-
poralis, Gaius, however, wishes us to identify Dominion with res
corporalis, and to make Obligation and the fractions of Domi-
150 | DE REBUS SINGULIS. [n.$$ 1-14.
nion (servitutes), and even some forms of Dominion (e.g. hereditas),
members of the contra-distinguished branch, res incorporalis. (Cf. 3
$ 88, omnes ejus res incorporales et corporales quaeque ei debita
sunt.)
Gaius was probably not entirely responsible for this confusion of
thought, which, perhaps, was too deeply inwoven in the formulae
of Roman jurisprudence to be easily eliminated by an institutional
writer. E.g. the declaration (intentio) of a real action (in rem
actio) was of the form: Si paret (1) illum fundum—12) illam
hereditatem— actoris esse. (Cf. 4 $ 8. In rem actio est cum
aut corporalem rem intendimus nostram esse aut jus aliquod
nobis competere.) Now as hereditas is a jus successionis (2 § 14),
it is clear that, if the second formula is correct, the first formula
ought to be, not, Si paret illum fundum—but, Si paret illus
fundi proprietatem — aetoris esse. To meet this and similar
inaccuracies of the framers of the formularies, Gaius is misled
into identifying in res corporalis two things completely disparate,
Right and the Subject of a right. There is a similar confusion
in English law, chattels, tenements, and hereditaments being
sometimes used to denote the subjects, movable or immovable, of
certain rights, sometimes the rights over those subjects: and just
as Res is divided into Corporalis and Incorporalis, so Heredita-
ments are divided into Corporeal and Incorporeal; although, if
the term denotes a right, both branches are equally incorporeal :
if it denotes the subject of a right, both branches are equally
corporeal.
In order to distribute the world of rights minus the rights of
status, and to indicate the position held by Dominion in the system
and the method substantially followed by Gaius, we may adopt the
following division :—
Equal rights are either sANCTIONED, primary, final; or
SANCTIONING, secondary, instrumental.
SANCTIONED righís are either—
Rea: rights availing against all the world (sus IN REM), or
PrnsoNAL: rights availing against certain determinate persons
(JUS IN PERSONAM).
Sanctioned rights against the world are either—
Unrelated to the external material universe, or
Related to the material universe.
1.§§ 1-14] DE RERUM DIVISIONE. 151
Sanctioned rights unrelated to the material universe are
PRIMORDIAL, or inborn rights. (These are not examined
separately by Gaius, but are implied in obligatio Ex
DELICTO. )
Sanctioned rights related to the material universe are Po$-
SESSION, DOMINION, SERVITUDE.
Sanctioned rights availing exclusively against certain persons,
correlate to obligations EX coNTRACTU: that is, to the
duties immediately produced by contract and before its
violation.
SANCTIONING rights are capable of the same subdivision, as
SANCTIONED rights. They are not examined separately by
Gaius, but partly under the head of obligatio EX DELICTO
(founded on violation of PRIMORDIAL or other REAL right),
partly under the head of obligatio Ex contractu (obligation
produced indirectly by contract, that is, by its violation), partly
under the head of acTionEs (procedure): personal actions pro-
secuting obligation EX DELICTO and EX CONTRACTU; and real
actions being the remedy for violations of POSSESSION, DOMINION,
SERVITUDE.
We shall find hereafter that the position of POSSESSION, in
Roman jurisprudence—whether it belongs to the department of
its IN REM or of OBLIGATIO EX DELICTO is a moot question; but
at present we need do no more than notice the existence of the
controversy. We need also only to indicate a further division
of rights and obligations into srNGLE rights and obligations,
such as those of which we have just given a classification, and
AGGREGATES of rights and obligations (UNIVERSITAS JURIS), such
as Hereditas. A UNIVERSITAS JURIS includes Obligations as well
as Rights, Jus in personam as well as Jus in rem, and Sanction-
ing rights as well as Sanctioned rights. But in spite of the
diverse character of these elements of which it is composed, the
JURIS UNIVERSITAS itself, or the ideal whole of these various
elements, is regarded, e. g. in Hereditatis petitio, as a Real right, not
an Obligation; as a Jus in rem, not a Jus im personam; as a
Sanctioned right, not a Sanctioning right. (As Res includes
Obligation (res incorporalis) as well as Dominion (res corporalis),
Thave used the term RERUM UNIVERSITAS to denominate the sub-
ject of Books II and III, as marking more clearly than Juris
162 DE REBUS BINGULIS. [n. §§ 1-14.
UNIVERSITAS an antithesis to RES SINGULAE; though I am aware
that Rerum universitas has generally a more insignificant accepta-
tion, denoting an artificial whole—a flock, herd, or library—in
opposition to the ingredients—the single sheep, horses, books—of
which it is composed.)
As Gaius thought that he could obtain the idea of Dominion by
a division of Res into corporalis and incorporalis, so he seems to
have thought that he could distinguish private dominion, the special
department which he intends to examine, from other forms of do-
minion by a further division of Res. The phrases res divinae, res
humanae, res communes, res publicae, res privatae, do, indeed, sug-
gest the notion that res privatae is a specific member of the genus
Res; but the appearance is fallacious. Very little reflection will
convince us that res divinae, res publicae, res privatae are not
a division of the suB7ECTS of property (res); for the same thing, a
piece of ground, for instance, may be the subject of divine or publie
or private dominion; but merely a division of proprietors. In res
divinae, the only doubtful case, the gods were deemed to be pro-
prietors. Sed et illa interdicta quae de locis sacris et de religiosis
proponuntur veluti proprietatis causam continent, Dig. 43, 1, 2, 2.
‘The interdicts respecting sacred and religious places protect a
quasi-property.’
The division of the subjects of right by their physical differences,
the only way in which they can be divided, though only of subor-
dinate importance, and though it cannot furnish the distinctions of
Dominion and Obligation, nor of Public and Private dominion, yet
has a considerable influence on jurisprudence, and demands a certain
amount of attention. Thus ocean, air, and light, as opposed to the
earth, are by their nature essentially res communes. Being in-
capable of appropriation, they have not been appropriated and are
held in communism, Again, the distinction of res corporales and
res incorporales may ground the distinction between Dominion and
Primordial righte. Again, in wild animals, as opposed to tame,
property is only coextensive with detention. On the difference
between specific and generic things, or things consumed by use,
quae pondere numero mensurave constant, and things not consumed
by use, is founded the distinction between the contracts of mutuum
and commodatum. On the same difference of specific and generic
things are founded in English law different rules for the trans-
mutation of property in the contract of sale, 8 $189; and the
m §§ 1-14.] DOMINION. 158
distinction of movables and immovables founds a still more im-
portant difference in the English forms of alienation and rules of
succession.
The phrases in nostro patrimonio and extra nostrum patrimonium,
$1, are apparently equivalent to alicujus in bonis and nullus iri
bonis, $ 9, and to the expressions we meet elsewhere, in commercio
and extra commercium. As to res divini juris, cf. Inst. Just. 2,
1, 7.
Of res communes, or the dominion of mankind, which sometimes
eomes under discussion but is not mentioned by Gaius, we may
observe, that it scarcely falls within the scope of our present pro-
vince, namely, positive law, for all positive law is confined to
the territory of the particular sovereign state by which it is
enacted.
All the things within the territory of a given state are subject to
its dominion, that is, are res publicae in a general sense of the term.
Of these things it allows the dominion over some to vest in private -
individuals for their own advantage, while it retains the dominion
over others in itself as a corporation or collective person (per-
sonarum universitas) This gives us a division of all things into
res privatae and res publicae in a narrower sense of the term. We
must note, however, that the dominion of the state is not exactly
sunilar to private dominion, that is to say, is not dominion in
the proper sense or the sense in which the word is used in civil
law. For the civil dominion of private persons is a right pro-
tected and sanctioned by a political superior, whereas a sovereign
state is by hypothesis in subjection to no superior. A state, then,
can only be said to have dominion in a modified sense of the word,
that is, so far as it is not restrained by any positive law of any
superior from using and dealing with certain things as it may
please.
Of things subject to public dominion, some are vested immediately
m the state, others in subordinate persons, single or corporate,
magistrates, for instance, and municipalities, to be held by such
persons for various public purposes. Among these we may reckon
res divinze which are portions of public dominion vested in certain
corporations in trust for religious purposes.
Another division of res publicae is into res in patrimonio populi
and res non in patrimonio populi. Under the former are included
the public treasury, the public domain, public slaves, escheats
154 DE REBUS SINGULIS. [rr. $$ 1-14:
(caduca) or res privatae that relapse to the state by forfeiture, or
as ultimus heres; in other words, all things of which the state as
universitas retains not only the property but also the use and
disposition (quasi propriae et privatae res universitatis, Dig. 43, 8,
2, 4). The other class includes, high roads, publie rivers, public
buildings, &c., that is, all things of which the property is in the
community and the use in the members of the community. Or
we may say that the property is in the universitas, but it is subject
to a personal servitude (usus) vested in all the private members of
that universitas (singuli, universi).
Not only res publicae but res privatae may be subject to this sort
of personal servitude. For instance, the banks of public rivers and
the trees thereupon are the property of the adjacent proprietors:
but the navigators of these rivers have the right of mooring,
landing, unlading, and using the banks in various other ways,
Inst. 2, 1, 4.
Property absolute or pre-eminently so called, may be defined as
a right of unlimited duration, imparting to the owner a. power of
indefinite enjoyment or use, and a power of aliening from all who
in default of alienation by him might succeed by descent; or, in
other words, from all successors interposed between himself and the
sovereign as ultimus heres, It is accordingly sometimes said to
consist of jus utendi, fruendi, abutendi; where abusus includes the
power of consumption or destruction, of dereliction, and of dis-
position (sale, exchange, gift, mortgage, lease, &c.) Another
element is equally important, the right of exclusion (jus prohi-
bendi) Another is the jus transmittendi, i. e. the right of leaving
the integral right, in the absence of Disposition, to those whom he
would presumably have wished to be his successors.
Besides absolute property Roman law recognizes various kinds of
partial property, real rights over a subject of which the dominion
is in another person, called jura in re or jura in re aliena, rights
which fall short of absolute property but approximate to it in
various degrees. Such are servitudes, § 14, mortgage (pignus),
superficies, and emphyteusis. "These may all be regarded as detached
fractions of property, portions of the nght of dominion taken from
the proprietor and vested in another person. Servitudes are explained
by Justinian in the parallel passage of his Institutes (II, 3—5), and,
together with the other jura in re aliena, demand here a brief notice.
Servitudes are (1) praedial or real (praediorum), that is, belong to
n. § 1-14.] SERVITUDE. 155
3 person as owner of a certain house or land (praedium dominans)
in respect of a house or land belonging to another proprietor (prae-
dium serviens), or (2) personal (personarum), that is, are vested in
a person without relation to his ownership of praedium dominans.
(Compare im English law the division of easements into easements
appurtenant to land and easements in gross.)
Praedial servitudes are servitudes properly so called and are con-
trasted with property by their precise and definite circumscription.
Property is a right against the world which gives to the party in
whom it resides a power of dealing with the subject which is not
capable of exact definition. Servitude is such a right against the
world as gives to the party in whom it resides a power of using the
subject which is susceptible of precise description. It is a definite
subtraction from the indefinite powers of use and exclusion which
reside in the proprietor; or a right against the owner and the rest of
the world to make certain use of a thing or prohibit certain uses.
Praedial servitudes are (1) rustic, relating to land, or (2) urban,
relating to houses. Urban servitudes are further subdivided into
Positive or Affirmative and Privative or Negative. The following
considerations will show the meaning of this division and its origin
m the nature of Property. |
Servitudes are limitations of, or deductions from, another person's
ownership or dominion. Dominion contains, among other elements,
(A) certain powers of action (jus utendi), and (B) certain powers of
exclusion (jus prohibendi) Restrictions on these powers will be
(2) a certain necessitas non utendi, and (4) a certain necessitas
patiendi. Correlative to these obligations on the part of the owner
of the servient,tenement will be certain rights of the owner of the
dominant tenement, viz. (a) a certain jus prohibendi, and (8) a
certain jus utendi, or in other words, (a) a certain negative servitude,
and (8) a certain affirmative servitude. As it happens that all the
servitudes which public policy has recognized in relation to land
are of an Affirmative character (except Si concedas mihi jus tibi
non esse in fundo tuo aquam quaerere, minuendae aquae meae
gratia, D. 8, 2, 1, 15) and relate to some transient action (except
Tugurmum habendi in tuo sui habeam pascui servitutem aut pecoris
appellendi, D. 8, 8, 6, 1), they may be called jus faciendi: while
those relating to houses are both Affirmative and Negative (jus
prohibendi). Affirmative Urban servitudes, implying some per-
manent structure, may, in conformity with classical usage (e. g. jus
156 DE REBUS SINGULIS. (a. $$ 1-14.
tignum immissum habendi) for the sake of distinction from the
Rural servitudes, be called jus habendi: they resemble them in the
generic character that they are each a jus utendi.
(1) Instances of Rural servitude (jus faciendi) are iter, or jus
eundi, right of way for beast and man on foot or on horseback over
the servient tenement to the dominant tenement; actus or jus
agendi, right of way for ordinary carriages (not for heavy-laden
waggons); via (or jus vehendi?), nght of paved way for heavy-
laden waggons; aquae haustus, the right of drawing water from
@ private spring; aquae ductus, the right of conveying water over
the servient tenement; pecoris ad aquam appulsus, the right of
watering cattle; jus pecoris pascendi, the right of pasturing cattle;
jus calcis coquendae, the right of burning lime; jus cretae exi-
mendae, the right of quarrying for chalk; jus arenae fodiendae,
the right of taking sand; jus sylvae caeduae, the right of cutting
timber, D. 8, 8.
(2) Instances of jus habendi are jus tigni immittendi, the right
of inserting a beam in & neighbour's wall; jus oneris ferendi, the
right of resting a weight on a neighbours wall or column (this
servitude involves on the part of the servient owner the positive
obligation of repairing the servient wall (refectio); whereas all
other servitudes, as real rights, are contradistinguished from
obligations proper, or personal righte, by corresponding to the
merely negative obligation of abstention); jus protegendi, the right:
of projecting a roof over the soil of a neighbour; jus stillicidii
recipiendi or avertendi or immittendi, the right of directing the
rainfall on to a neighbour's roof or area; jus cloacae immittendae,
the nght of having a sewer through the area of a neighbour;
servitus luminum or jus luminis immittendi, the right of having
& window in a neighbours wall; jus officiendi luminibus vieini,
the reacquired right of diminishing the light of & neighbour; jus
altius tollendi, the reacquired right of increasing the height of a
structure, 2 $ 81; the right of storing fruit in his villa, ut fructus
in vicini villa cogantur coactique habeantur; of placing quarried
stones on his land, terr&m, rudus, saxa, jacere posita habere,
et ut in tuum lapides provolvantur ibique positi habeantur,
D. 8, 8, 38, § 1, $ 2. Vangerow holds that Aquaeductus,
implying jus habendi, though it is servitus Rustica as to the land
from which water is taken, is servitus Urbana as to the land over
which water is conveyed.
n. § 1-14.] SERVITUDE. 157
(3) Instances of jus prohibendi are jus altius non tollendi, the
right of forbidding a neighbour to raise the height of his buildings ;
jus ne prospectui officiatur, the right of having a prospect un-
intercepted ; jus ne luminibus officiatur, the right of having the
access of light to one’s windows unobstructed; jus stillicidii non
avertendi, the reacquired right of prohibiting my neighbour from
discharging his rainfall into my area. Inst. 2, 8.
Personal servitudes are rights of a less limited character: in-
stances are Habitatio, the right of occupying a house, Usus, the
right of using a thing and consuming its immediate fruits or
products, without the right of letting the thing or selling its pro-
ducts ; of acquiring, in other words, its rent and profits, which
may be regarded as its mediate or secondary fruits. Inst. 2, 4, and
5. Fructus, usually called Ususfructus, the further right of leasing
the thing and selling its fruits. Habitatio, Usus, Ususfructus
were usually estates for life, and, unlike real servitudes, implied
Detention of the subject; Possession of the subject, as opposed
to Detention, remaining in the proprietor. For the modes of
ereating and vindicating servitudes, see $ 28-§ 83; 4, § 88,
comm.
For pignus, see 3 § 90, commentary.
Superficies is the right of a person who has bought a house
without the ground on which it stands, or who has built a house
on another's ground with his permission, a house, that 1s, which at
gentile law, by the rule of Accession, is the property of the pro-
prietor of the soil. The Praetor, however, recognized in the super-
ficiarius a jus in re which he protected by an interdict de superficie
and an actio in rem utilis.
For emphyteusis, see 8 § 145. Although an emphyteusis might
be of unlimited duration, and was alienable without the consent of
the proprietor, yet the proprietor had a reversion on failure of the
heirs of the emphyteuta, just as the feudal lord of a fee has the
reversion on failure of the heirs of the tenant in fee. Accordingly,
emphyteusis is regarded as the model on which feudal tenure was
institated. This reversion or escheat to the lord of the fee makes
property in land theoretically imperfect, and, like emphyteusis,
rather a jus in re aliena than plenary dominion. Property in
chattels, on the contrary, has no reversioner interposed between
the proprietor and the sovereign as ultimus heres, and, therefore, is 18
abeolute.
158 DE REBUS SINGULIS. [rr. $$ 15-27.
The Incorporeal hereditaments of English law generally cor-
respond to the Servitutes and jus in re aliena of Roman law.
But the principle: Servitutum non ea natura est ut aliquid faciat
quis, sed ut aliquid patiatur aut non faciat, D. 8, 1, 15, 1: * Servi-
tudes are not a right to a performance but to a permission or
forbearance:? would exclude from the class of Servitudes some
members of the class of Incorporeal hereditaments; e.g. Rents,
which are said to lie in render, i.e. to involve a performance of
the party burdened, not in prender, i.e. not to consist in an act
of the party entitled. Roman law adhered strictly to the principle
that Real rights, or rights against the world, can only correlate
to negative obligations, duties of forbearance; and that rights
correlating to positive obligations, or duties of performance, can
only be Personal ; i.e. can only regard a particular individual and
his universal successors.
Having described the various kinds of real nght (jus in rem),
ie. dominion and its fractions (jura in re), we proceed to the
TITLES of real rights, that is to say, the events to which these
rights are annexed by the legislator; in other words, the modes
prescribed by the legislator by which such rights may be acquired ;
in other words, the legislative definitions of the classes of persons
in whom such rights are declared to be vested.
The Titles of real rights are divisible into Titles by which single
real rights are acquired and Titles by which aggregates of rights
(universitates jurum) are acquired.
Titles by which single real rights are acquired. are divisible into
Titles sanctioned by the civil law and Titles sanctioned by natural
(gentile) law (jus gentium), natural law denoting the rules intro-
duced by praetors and jurists as consonant to the general reason
of mankind.
Titles by civil law are mancipatio, in jure cessio, usucapio, tra-
ditio, and others which will be mentioned. Titles by natural law
are traditio, occupatio, accessio, and others which will be men-
tioned. We commence with Titles by civil law, and the intro-
duetory propositions which are partly illegible in the manuscript of
Gaius may be supplied from Ulpian, Regulae, 19, 1, or Gaius,
1 $120.
Res mancipi are individualities as opposed to fungible things,
things without individual character, such as sheep, swine, corn, or
money,
m1. §§ 15-27.] RERUM C. ADQUISITIONES CIVILES. 159
RERUM CORPORALIUM ADQUISITIONES CIVILES.
$15. Item stipendiaria praedia
et tributaria nec mancipii | sunt.
sed quod diximus—— ——|mancipii
esse | statim ut nata
sunt mancipi esse putant; Nerua
uero et Proculus et ceteri diuersae
scholae auctores non aliter ea man-
cipti esse putant, quam si domita
sunt; et si propter nimiam ferita-
tem domari non possunt, tunc ui-
deri mancipti esse incipere, cum ad
eam aetatem peruenerint, qua do-
mari solent.
$ 16. Item ferae bestiae nec man-
cipi sunt uelut ursi, leones, item
ea animalia quae fere bestiarum
numero sunt, ueluti elephanti et
cameli; etideo ad rem non pertinet,
quod haec animalia etiam collo dor-
soue domari solent; nam ne nomen
quidem eorum animalium illo tem-
pore (notum) fuit, quo constitue-
betur quasdam res mancipti esse
quasdam nec mancipii.
$17. Item fere omnia quae incor-
poralia sunt, nec mancipti sunt, ex-
ceptis seruitutibus praediorum rus-
ticorum; nam eas mancipil esse
constat, quamuis sint ex numero
rerum incorporalium.
$18. Magna autem differentia
est inter mancipii res et nec man-
cipi
$ 19. Nam res nec mancipzi ipsa
traditione pleno iure alterius fiunt,
si modo corporales sunt et ob id
recipiunt traditionem.
$20. Itaque si tibi uestem uel
aurum uel argentum tradidero siue
ex uenditionis causa siue ex dona-
tionis siue quauis ali» ex causa,
statim tua fit ea res, si modo ego
eius dominus sim.
$21. In eadem causa sunt pro-
uincialis praedia, quorum alia sti-
$ 15. Stipendiary and tributary
estates are also not mancipable.
Accordmg to my school animals
which: are generally. tamed are
mancipable as soon as they are
born; according to Nerva and
Proculus and their followers, such
animals are not mancipable until
tamed, or if too wild to be tamed,
until they attain the age at which
other individuals of the species are
tamed
§ 16. Things not mancipable in-
clude wild beasts, as bears, lions;
and semi-wild beasts, as elephants
and camels, notwithstanding that
these animals are sometimes em-
ployed for draught or carriage; for
their name was not even known at
the time when the distinction be-
tween res mancipi and nec mancipi
was established.
$17. Also things incorporeal,
except rustic servitudes on Italian
soil.
' $18. There is an important dif-
ference between things mancipable
&nd things not mancipable.
$19. Complete ownership in
things not mancipable is transferred
by mere delivery of possession, if
they are corporeal and capable of
delivery.
§ 20. Thus when possession of
clothes or gold or silver is deli-
vered to a vendee or donee or a
person otherwise entitled, the pro-
perty passes at once by the mere
act of prehension, if the person
who conveys is proprietor.
§ 21. Similarly transferrible are
estates in provincial lands, whether
160
pendiaria alia tributaria uocamus.
stipendiaria sunt ea quae in his
prouincás sunt, quae propriae
populi Romani esse intelleguntur ;
tributaria sunt ea quae in his pro-
uinciis sunt, quae propriae Caesaris
esse creduntur.
$ 22. Mancipti uero res sunt
quae per mancipationem ad alium
transferuntur ; unde etiam man-
cipti res sunt dictae. quod autem
ualet (mancipatio, idem ualet et in
ture cessto.
$ 23. Et) mancipatio quidem
quemadmodum fiat, superiore com-
mentario tradidimus.
$ 24. In iure cessio autem hoc
modo fit: apud magistratum populi
Romani, ueluti praetores, is cui
res in lure ceditur, rem tenens ita
dicit HYNC EGO HOMINEM EX IVBE
QVIBITIVM MEVM ESSE AIO; deinde
postquam hic uindicauert, praetor
interrogat eum qui cedit, an contra
uindicet; quo negante aut tacente
tunc ei qui uindicauerit, eam rem
addicit ; idque legis actio uocatur.
hoe fieri potest etiam in prouinciis
apud praesides earum.
§ 25. Plerumque tamen et fere
semper mancipationibus utimur.
quod enim ipsi per nos praesentibus
amicis agere possumus, hoc non est
necesse cum maiore difficultate
apud praetorem aut apud praesidem
prouinciae agere.
§ 26. Quodsi neque mancipata
neque in iure cessa sit res man-
cipti
(6 uersus in C legi nequeunt).
*plena possessio concessa
ex formula qua hi qu |
fructus na .
§ 27. Item adhuc i |
(4 wersus in C legi nequeunt) —
[non fuissent ———— |
. DE REBUS SINGULIS.
[nr. $$ 15-27.
stipendiary or tributary; stipen-
diary being lands in provinces sub-
ject to the dominion of the people
of Rome; tributary, lands in the
provinces subject to the dominion
of the Emperor.
§ 22. Property in things manci-
pable, on the contrary, is conveyed
by mancipation, whence their name,
or—a universally applicable mode
of transfer—by surrender before a
magistrate ina fictitious vindication.
§ 23. The process of mancipation
was described in the preceding
book (1 $ 119 8).
$ 24. Surrender in a fictitious
vindication is in the following form :
in the presence of some magistrate
of the people of Rome, such as a
praetor, the surrenderee grasping
the subject says: I cuaim THIS
SLAVE AS MY PROPERTY BY TITLE
QuiniTARY. Then the praetor inter-
rogates the surrenderor whether he
makes & counterclaim, and upon
his disclaimer or silence awards
the thing to the demandant. This
proceeding is called & statute-
process and can now be performed
before the president of an imperial
province.
$ 25. Generally, however, and
almost always the method of man-
cipation is preferred; for why
should a result that can be accom-
plished in private with the assist-
ance of our friends be prosecuted
with greater trouble in the court
of the praetor or president of the
province 1
$ 26. If neither mancipation nor
judicial surrender is employed in
the conveyance of a mancipable
thing .
1.$$15-27.] RERUM C. ADQUISITIONES OIVILES. 161
(7 uersus in C legi nequeunt)
—————| lest quo nomine
ere uel
praedium— ———|dem ulla libera
ciuitas —- admo|nendi sumus |
esse prouincialis soli nexum non e
——|significationem solum Jtalicum
mancipti est, projuinciale nec man-
cipal est. aliter enim ueteri lingua
mancipa—},
Of civil Titles the oldest were probably in jure cessio and usu-
capio, the one public, the other private, the one containing an act
of a political authority, the other subordinate and supplementary
to this, and though equally effectual where it applied, yet not quite
80 extensive in its application.
In jure cessio or surrender before a magistrate cannot fail to
recall to an English lawyer two similar modes of alienation that
recently existed in English jurisprudence, alienation by Fine and
alienation by Recovery, both of which, like in jure cessio, were
based on a fictitious action; in both of which, that is to say,
although the parties did not really stand in the relation of adverse
litigants, the alienee was supposed to recover an estate by process of
law. By & Fine, an action commenced against the alienor and at
once terminated by his acknowledging the right of the alienee, a
tenant in tail could aliene the fee simple, so far at least to bar
his own issue. By a Recovery, a tenant in tail could convey an
absolute estate in fee. This was an action supposed to be, not like
a Fine immediately compromised, but carried on through every
regular stage to the conclusion; whereby the alienee recovered
judgment against the alienor, who in his turn recovered judgment
against an imaginary warrantor whom he vouched to warranty (cf.
laudat auctorem, 8 $ 141, comm.). Another employment of fictitious
action in English law as a solemn form, not of alienation but of
contract, a title, consequently, not of jus in rem but of jus in personam,
namely, the Judgment Debt (see 8 $ 184, comm.), has no parallel in
Roman jurisprudence of the classical period : though in earlier times
the Nexum, expressing the obligation of the promisor by the term
Damnas, i.e. condemnatus, apparently placed him in the position
of a judgment debtor (pro judicato), and rendered him liable to the
most rigorous form of execution (manus injectio).
In jure cessio to a late period was the principal mode of manu-
M
162 . DE REBUS SINGULIS. [nr $$ 15-27.
mitting slaves, and a part of the process of emancipation, that is,
the release of & son from the patria potestas,
To relieve the magistrate and the parties from the troublesome
process of in jure cessio, a new mode of conveyance, by bronze and
balance (nexum, mancipium, per aes et libram), which did not
require the intervention of a public functionary, was introduced at
some subsequent period, but confined to the alienation of certain
specific subjects of property. The things capable of this mode of
alienation were at first, probably, only the ordinary booty of a
predatory tribe, slaves and the larger kinds of cattle; but after-
wards included land, rustic servitudes, and the familia or univer-
sitas jurum of a testator, 2 $ 104, Not only slaves, but liberae
personae of an inferior domestic status, filiusfamilias and filiafami-
lias, were subject to conveyance by mancipation. By this process,
a genuine sale for a valuable consideration, a father could sell his
son into domestic bondage (mancipium): by this process, reduced to
the state of a fiction, a woman became subject to the manus of a
husband (coemptio), and a filiusfamilias was adopted (adoptio) or
emancipated (emancipatio). |
Mancipation, as conveying property without possession, 4 § 131,
may be compared to a Deed in English law; and, like the cor-
responding English solemnity, might be used as a formality either
of alienation or of contract, 8 § 173; or, if we take contract in a
wider sense as equivalent to bilateral disposition, of contract either
translative or obligative. After the introduction of mancipation
mancipable things were the most easily alienable: they could be
aliened by mancipation as well as by surrender in court and usu-
capion, whereas not-mancipable things were only alienable by the
two latter modes of transfer.
At a later period, however, in order to facilitate the transfer of
property in those cases where it was most difficult, a new and still
simpler process was introduced, namely, tradition or the delivery of
possession. In such not-mancipable things as were corporeal, the
transfer of possession or physical dominion, that is, the exclusive
power of acting corporeally on a given body, a title in gentile
law, was declared by the legislator to be a title in civil law, to
operate a transfer of legal or civil dominion, dominion ex jure
Quiritium, Thus the tables were now turned: things, which for-
merly were most difficult, were now most easy to aliene: the term
mancipable, which before denoted an enlargement of the powers of
n.$15-27.] RERUM C. ADQUISITIONES CIVILES. 163
alienation, now denoted a restriction; for mancipable things were
things alienable either by surrender or by usucapion or by the
eumbrous process of mancipation, but not by tradition ; not-man-
eipable things were things alienable (such of them at least as were
corporeal) either by surrender or by usucapion or by the simple
process of tradition, though not by mancipation.
Perhaps, however, the tradition of some res nec-mancipi, j.e.
non-individual things, is coeval with the alienation of res-mancipi ;
and, though not mancipable, non-individual things were always
easier to aliene than res mancipi. Mancipatio, as being a sale,
and therefore implying the transfer of money, i.e. of res nec-mancipi,
is essentially posterior to alienation of money by delivery of posses-
sion. The alienative power of tradition by the natural code, must
be more primeval than the Formal dispositions; for tradition with
solvendi animus (venditio) is simulated by formal alienation (man-
eipatio), and tradition with mutuandi animus (mutuum) is simulated
by Nexum.
In respect of land the title in English law corresponding to
tradition is Feoffment, The essence of a feoffment is livery of
seisin (delivery of possession), and though subsequently a deed was
always added, yet, originally, livery of seisin was a valid transfer
of property without an accompanying deed.
We proceed to notice minor points in the text of Gaius. We
have hitherto spoken of tradition as a title whereby property was
acquired. Tradition, however, was only an element, usually the
final element, of the complex mode of acquisition to which it gives
its name. 'T'o be capable of passing property, tradition must be ac-
companied by another element, usually an antecedent element, some
contract or other source of obligation, or some evidence of intention
to aliene. The same was true of usucapion. Besides possession
for a certain term it was requisite that possession should have had
an innocent inception or belief of the possessor that he had a right
to take possession (bona fides). The second condition of acquisition
was indicated by the preposition pro governing a noun or participle;
the bona fide possessor was said to possess pro emptore, pro donato,
pro legato, pro derelicto, &c. The condition itself was called the
causa (§ 20), or justa causa, or titulus, of the usucapion; and we
how may notice the exact relation of the word Title as used in this
eommentary to the Titulus of the classical jurists. Title, as used
by Austin and as used in this commentary, denotes the totality of
M2
164 DE REBUS SINGULIS. rr. $$ 15-27.
the complex conditions to which the law annexes any right, in rem
or in personam : titulus as used by the classical jurists is only one
portion of the mode of acquisition called Usucapion. "Titulus usu-
capionis, D. 41, 9, 1, was any disposition capable of conferrmg
ownership which failed in some instance to confer ownership in con-
sequence of the absence of some particular condition.
Instead of denoting the whole of a complex investitive fact, it
denotes in their writings only a constituent part of this fact: it
merely denotes the fact by which the acquisition begins, as contra-
distinguished from the fact by which the acquisition is completed.
§ 21. The system of taxation which Rome imposed on her
provinces demands a brief notice. Under the Republic different
provinces were subject to different systems, but with the Empire
a tendency to uniformity of taxation commenced: the distinction
of tributary and stipendiary provinces was merely nominal in the
time of Gaius, and it ceased entirely in the time of Pomponius and
Ulpian. As early, probably, as from the time of Marcus Aurelius,
under whom Gaius flourished, the following system of direct taxation
was uniformly established throughout the Roman world.
Direct taxation was of two kinds: it embraced (1) a poll tax or
capitation tax, i.e. a tax on persons (capitis tributum), and (2) a
tax on land (agri tributum). The tax on persons (capitatio humana)
was a fixed sum, probably of small amount, that was only levied on
persons who were not liable to the land tax, on tributarii as opposed
to possessores. It was chiefly contributed by three classes, (1) tenant
farmers of & semi-servile condition (coloni), (2) artisans and labourers,
(3) slaves. From this capitation tax were exempted all who had
the rank of municipal senators (decuriones, curiales, ordo), even
though they were not possessores. From the classes on whom it was
levied, capitatio humana was sometimes called capitatio plebeia.
The tax on landholders (possessores) was also called capitation
(capitatio terrena). The reason of this will appear when we explain
the mode in which it was levied. The whole territory was ideally
divided into units of taxation (capita, juga), districte varying in size
aecording to the nature of the soil, each having an estimated
capital value of 1000 solidi or aurei, and hence called millena.
From these capita or juga the land tax derived its name of capitatio
or jugatio. The list of capita was called a Cadastre (capitastrum),
and was revised every fifteen years (one of the earliest land valua-
tions, made by order of Augustus, is mentioned by St. Luke, 2, 1).
11. § 28-39.] RERUM INO. ADQUISITIONES CIVILES. 165
Every year, as soon as the Minister of Finance had settled the
budget of expenditure, proclamation (indictio, delegatio) was made
of the amount of taxes required, or rather, the total being divided
by the number of capita, of the amount to be paid by each caput.
Each caput paid the same sum. The financial year commenced on
lst of September; and the tax was payable in three mstalments,
on the Ist days of the following January, May, and September.
Besides the money tax, and proportioned to it, landowners had
to pay a certain tax in raw produce (annona).
Italy and the privileged towns that enjoyed Jus Italicum were
exempt from both these forms of direct taxation; jus Italicum
eonsisting, as we have stated, of three elements, (1) free municipal
constitution, (2) capacity in the soil of quiritary ownership, and (3)
immunity from both kinds of direct taxation, jugatio humana and
jugatio terrena. Italy, however, with the exception of the district
about Rome, was subject to certain payments in kind (annona),
whence its division into Italia annonaria and Italia urbicaria.
According to some, Italia urbicaria contributed to the use of the
metropolis payments similar to those which Italia annonaria paid
to the imperial household. Moreover, to compensate for. her im-
munity from other taxation, Italy paid 5 per cent. on all testa-
mentary successions (vicesima hereditatum) and 5 per cent. on
the value of all manumitted slaves, Livy, 7, 16. Under Diocletian
Italy lost her immunities and was reduced to the condition of a
province. Savigny, Vermischte Schriften, 16.
§ 24. The legati Caesaris or Presidents of imperial provinces had
originally no jurisdiction to preside over legis actio, but this was
afterwards conferred upon them, Tac. Ann. 12, 60.
§ 26. Gaius probably explained in this place the effect of delivery
of a res mancipi and then went on to treat of the jus commercii.
RERUM INCORPORALIUM ADQUISITIONES CIVILES.
$28. (Hes) incorporsles tradi-
tionem non recipere manifestum
es.
§ 29. Sed iura praediorum urban-
orum in iure cedi (£antwn) possunt;
rasticorum uero etiam mancipari
possunt.
$30. Vsusfructus in iure ces-
sionem tantum recipit. nam do-
minus proprietatis aldi usumfruc-
$ 28. Incorporeal things are ob-
viously incapable of transfer by
delivery of possession.
$ 29. Urban servitudes can only
be created by surrender in a fic-
titious vindication; rustic servi-
tudes may either be acquired by
this method or by mancipation.
$ 30. Usufruct can only be
created by surrender in a fictitious
vindication, <A usufruct surren-
166
tum in iure cedere potest, ut ille
usumfructum habeat et ipse nudam
proprietatem retineat. ipse usu-
fructuarius in iure cedendo domino
proprietatis usumfructum efficit, ut
& se discedat et conuertatur in pro-
prietatem ; alti uero in iure cedendo
nihilo minus ius suum retinet; cre-
ditur enim ea cessione nihil agi.
§ 31. Sed haec scilicet in Italicis
praediis ita sunt, quia et ipsa
praedia mancipationem et in iure
cessionem recipiunt. alioquin in
prouincialibus praediis siue quis
usumfructum siue ius eundi, agendi
&quamue ducendi uel altius tollendi
aedes aut non tollendi, ne luminibus
uicini officiatur, ceteraque similia
iur& constituere uelit, pactionibus
et stipulationibus id efficere potest ;
quia ne ipsa quidem praedia man-
eipationem aut (in) iure cessionem
recipiunt,
§ 32. Sed cum ususfructus et
hominum et ceterorum animalium
constitui possit, intellegere debemus
horum usumfructum etiam in pro-
uinciis per in iure cessionem con-
stitui posse.
§ 33. Quod autem diximus usum-
fructum in iure cessionem tantum
recipere, non est temere dictum,
quamuis etiam per mancipationem
constitui possit eo, quod in manci-
panda proprietate detrahi potest;
non enim ipse ususfructus manci-
patur, sed cum in mancipanda pro-
prietate deducatur, eo fit ut apud
alium ususfructus, apud alium pro:
prietas sit.
$ 34. Hereditas quoque in iure
cessionem tantum recipit.
$ 35. Nam si is ad quem ab in-
testato legitimo iure pertinet here-
ditas, in iure eam alti ante aditio-
DE REBUS SINGULIS.
[11. $$ 28-39.
dered by the owner of the property
passes to the surrenderee, leaving
the naked property in the sur-
renderor. A usufruct surrendered
by the usufructuary to the owner
of the property passes to the sur-
renderee and is reannexed to the
property. Surrendered to a stran-
ger it continues in the usufructuary,
for the surrender is deemed inoper-
ative.
$31. These modes of creating
usufruct are confined to estates
in Italian soil, for only these es-
tates can be conveyed by manci-
pation or judicial surrender. On
provincial soil, usufructs and ser-
vitudes of cattle way, carriage way,
watercourse, raising structures, not
raising structures, not obstructing
lights, and the like, must be created
by convention and stipulation ; for
the estates themselves, the subject
of these servitudes, are incapable of
conveyance by mancipation or ju-
dicial surrender.
§ 32. In slaves and other animals
usufruct can be created even on
provincial soil by surrender before
a magistrate.
$ 338. My recent statement that
usufruct was only conveyed by
judicial surrender was not inac-
curate, although it may to this
extent be created by mancipation
that we may mancipate the property
and reserve the usufruct; for the
usufruct itself is not mancipated,
although the mancipation of the
property and reservation of the
usufruct separates the holder of the
usufruct from the holder of the
property.
$ 34. Inheritances also are only
alienable by judicial surrender.
§ 35. If the person entitled in
intestacy by agnation surrender the
inheritance before acceptance, that
1.$$28—-39.] RERUM INC. ADQUISITIONES CIVILES.
nem cedat, id est antequam heres
extiterit, proinde fit heres is cui in
lure cesserit, ac si ipse per legem
ad heredifatem uocatus esset; post
obligationem uero si cesserit, nihilo
minus ipee heres permanet et ob
id creditoribus tenebitur, debita
uero pereunt eoque modo debitores
bereditarü lucrum faciunt ; corpora
uero eius hereditatis proinde tran-
seunt ad eum cui cessa est hereditas,
ac si ei singula in iure cessa fuis-
sent.
$ 36. Testamento autem scriptus
heres ante aditam quidem heredi-
tatem in iure cedendo eam alii nihil
agit; postea uero quam adierit si
cedat, ea accidunt quae proxime
diximus de eo ad quem ab intestato
legitimo iure pertinet hereditas, si
post obligationem ($n) iure cedat.
$ 37. Idem et de necessariis he-
redibus diuersae scholae auctores
existimant, quod nihil uidetur in-
teresse, utrum (aliquis) adeundo
bereditatem fiat heres, an inuitus
existat; quod quale sit, suo loco
apparebit. sed nostri praeceptores
putant nihil agere necessarium here-
dem, cum in iure cedat hereditatem.
$38. Obligationes quoquo modo
eontractae nihil eorum recipiunt.
nam quod mihi ab aliquo debetur,
id si uelim tibi deberi, nullo eorum
modo, quibus res corporales ad alium
transferuntur, id efficere possum,
sed opus est, ut iubente me tu ab eo
&ipuleris ; quae res efficit, ut a me
liberetur et incipiat tibi teneri;
quae dicitur nouatio obligationis.
$39. Sine hac uero noustione
non poteris tuo nomine agere, sed
debes ex persona mea quasi cognitor
ant procurator meus experiri.
167
is to say, before his heirship is con-
summated, the surrenderee becomea
heir just as if he was entitled by
&gnation; but if the agnate sur-
renders after acceptance, in spite of
the surrender he continues heir and
answerable to the creditors, his
rights of action are extinguished
and thus the debtors to the estate
are discharged of liability without
payment, while the property in the
corporeal subjects of the inheritance
passes to the surrenderee just as if
they were separately surrendered.
§ 36. A devisee’s surrender before
acceptance is inoperative: after ac-
ceptance it has the operation just
ascribed to the agnate's surrender
of an intestate succession after ac-
ceptance.
$37. So has a surrender by a
necessary successor according to the
other school, because it seems im-
material whether a man is a volun-
tary or an involuntary successor (a
distinction that will be explained
hereafter): according to my school
& necessary heir's surrender of the
inheritance is inoperative. [3 $ 85.]
§ 38. Obligations, in whatever
way contracted, are incapable of
transmission by either method. If
I wish to transfer my claim against
a third person, none of the modes
whereby corporeal things are trans-
ferred is effective: but I must order
the alienee to bind the debtor by
stipulation: whereupon my debtor
is discharged of his debt to me and
becomes liable to the alienee ; which
transformation of a debt is called
novation.
$ 39. In default of such novation
he cannot sue in his own name, but
must sue in my name as my cognitor
or procurator.
$ 28. So incorporeal hereditaments in English law were said to
lie in grant, not in feoffment, i.e. to be only conveyable by deed, or
168 . .. DE REBUS SINGULIS. (rx. $$ 28-39:
sealed writing ; whereas corporeal hereditamente were conveyable
by feoffment, 1. e. by livery of seisin or delivery of possession.
§ 80. Inalienability was no peculiar characteristic of Usufruct
and other personal servitudes. Alienation of rights, or singular
succession as opposed to inheritance or universal succession, was
the exception not the rule. Dominion over res singulae was
alienable but almost all other rights were intransferable. If we
except the delatio of hereditas legitima, § 35, hereditas, as we shall .
see, was inalienable: and what is said of Urban and Rural predial
servitudes, $6 29, 30, refers to their creation, not to their alienation.
In the law of Persons Patria potestas, 1 $184, and Tutela, 1 $168,
could be transferred but only by judicial surrender (in jure cessio),
i.e. & process which feigned that there was no transfer. Manus
and mancipium could be extinguished but not transferred [Ihering,
§ 82], except that, apparently, mancipium could be retransferred to
the natural parent or mancipator, 1 § 132.
§ 31. It appears that convention (pactio) alone unaccompanied
by tradition or quasi tradition was capable of creating a servitude,
in opposition to the general rule of Roman law, that convention
ean only ereate at the utmost an obligation (jus in personam), and
m order to create a jus in rem must be accompanied by delivery of
possession. Other exceptional instances in which convention with-
out any further accompaniment creates a jus in rem, that is, trans-
fers either property or jus in re, are hypotheca (see 8 $ 91 comm.)
and societas omnium bonorum (see 8 $ 148). Vangerow, however,
holds, § 350, that pactio and stipulatio could not create a genuine
servitus, enforcible against the serviens and his assigns (singular
successors), but only an Obligatio, enforcible against the serviens
and his heirs (universal successors): that in the time of Gaius this
was all that could be accomplished; but that afterwards, when
quasi traditio of res incorporalis was recognized as practicable,
genuine Servitudes could be constituted by Quasi-tradition.
The servitus altius tollendi, or the right of increasing the height
of an edifice, is at first sight very enigmatical. My might of
increasing the height of my building, and thus obstructing the
lights of my neighbour, would seem to be part and parcel of my
unlimited rights of dominion: and, if a dispute arose, one would
think that the burden of proof would be on my neighbour, who
would have to prove a special limitation of my rights as owner
of a praedium serviens and a special right residing in himeelf as
n.§§28-39.] RERUM INC. ADQUISITIONES CIVILES. 1609
owner of a praedium dominans: that is to say, that instead of my
having to prove a servitude or jus altius tollendi, my neighbour
would have to prove a servitude or jus altius non tollendi. Cum
eo qui tollendo obscurat vicini aedes quibus non serviat nulla
competit actio, Dig. 8, 2, 9. ‘A man who by building obscures his
neighbour's lights, unless subject to a servitude, is not actionable.’
Altius aedificia tollere, si domus servitutem non debeat, dominus
ejus minime prohibetur, Cod. 8, 34, 8. ‘A man cannot be pre-
vented from raising the height of his house unless it is subject
to a servitude.’ The same rule is laid down in English law.
‘By force of a grant or prescription a man may become entitled
to maintain his windows in freedom from all obstruction. But
in the absence of any grant and before the period has elapsed
which suffices for the establishment of a prescriptive claim, it is
competent to the owner of the adjoining land to construct a wall
or house on it so near to the former as to intercept the light which
it would otherwise have received; for his right to erect edifices
on any part of his own soil is as clear as that of the first builder.’
Stephen, 1, 628. The following is the solution of the problem :
The extinction of Rural and Urban servitudes was governed by
different rules. The extinction of a Rural servitude was more
easily accomplished than that of an Urban servitude: it was
effected by simple non-user (non utendo) on the part of the
dominant owner for a period, originally, of two years, afterwards
of ten. The extinction of an Urban servitude demanded, besides
the negative omission of use on the part of the dominant, a posi-
tive possession of freedom (usucapio libertatis) on the part of the
servient owner. Gaius thus explains the difference: in a servitus
ne amplius tollantur aedes, or ne luminibus aedium officiatur, if the
windows of the dominant house are closed with masonry there is
a non-usus of the servitude on the part of the dominant owner;
if in the same time the height of the servient house is raised there
!s possession of freedom on the part of the servient owner. Or
in a servitus tigni immissi, if the dominant owner removes the
beam from his neighbour’s wall there is on his part non-usus; if
the servient owner builds up the orifice in which the beam was
inserted, there is on his part usucapio libertatis, D. 8, 2, 6.
Originally Servitudes, like Dominion, could be acquired by Usu-
capion ; and as the extinction of Urban Servitudes was governed
by the same conditions, it was regarded by the jurists as an
170 DE REBUS SINGULIS. [11.$$ 28-39.
acquisition of an antagonistic servitude. On the extinction of a
Rural servitude, the servient property simply recovered its original
dimensions: an Urban servitude was a permanent diminution of
the servient property, and on its extinction the servient property,
instead of dilating to its original size, recovered what it had lost
in the shape of the annexation of a contrary servitude. When at
an unknown date the Usucapion of servitudes was abolished by
a lex Scribonia, an exception was made in favour of these Contrary
servitudes, which in fact were not genuine servitudes, but merely
the expression of the greater difficulty of extinguishing an Urban
servitude. Libertatem servitutum usucapi posse verius est, quia
eam usucapionem sustulit lex Scribonia quae servitutem consti-
tuebat, non etiam eam quae libertatem praestat sublata servitute,
D. 41, 3, 4, § 28. ‘ Extinction of servitude by usucapion is admis-
sible, for the usucapion abolished by lex Scribonia was usucapion
whereby a servitude is constituted, not that which liberates by
extinction of servitude, Thus he who laboured under a disability
of building (jus altius non tollendi) was regarded on its extinction
as having acquired the opposite easement, jus altius tollendi; he
who was relieved of the servitus ne luminibus officiatur was re-
garded as acquiring a jus officiendi luminibus vicini; he who was
relieved from the servitus stillicidii avertendi in tectum vel aream
vicini was deemed to acquire a jus stillicidii non avertendi, D. 8, 2, 2.
It does not appear that the ordinary requisites of Usucapio, titulus
and bona fides ($ 61 comm.), were required in this usucapio libertatis.
In usucapio libertatis, a right being acquired, the ten years are
complete on the commencement of the last day: in non usus, a
right being lost, the ten years are not complete till the last day is
terminated. Vangerow, § 353.
The three servitudes, ne prospectui officiatur, ne luminibus offi-
ciatur, ne altius tollatur, are similar in effect, but differ in their
degree of extension. The servitus ne luminibus officiatur is not
so extensive as the servitus ne prospectui officiatur, for that may
amount to an obstruction of prospect which does not cause a
diminution of light, D. 8, 2, 16 : but is wider than servitus altius
non tollendi, because light may be intercepted by other causes than
buildings, by plantation, for instance, though building is the prin-
eipal means of interception, D. 8, 2, 4.
Servitus luminum has been already noticed, §§ 1-14 comm., as
apparently identical with jus luminis immittendi, i. e. the right of
1. $$ 40—61.] DE USUCAPIONIBUS. 171
having a window in a neighbour’s wall. Luminum servitute con-
stitata id adquisitum videtur ut vicinus lumina nostra excipiat,
D.8, 2, 4. * The easement of Lights entitles the owner of the domin-
ant house to have a window in the wall of his servient neighbour.
It appears from the above explanation that the servitus luminum
and the servitus ne luminibus officiatur belong to different cate-
gories, for the servitus luminum, like the jus officiendi luminibus,
belongs to the category of jus habendi; while the servitus ne
luminibus officiatur belongs to the category of jus prohibendi.
$84. C£ 3, §§ 85-87. The statement that an inheritance is
not mancipable may seem inconsistent with what we are after-
wards told of the testament by bronze and balance, $ 102. There
is; however, no real inconsistency. The subject mancipated in the
will by bronze and balance, though a universitas, was not an
inheritance—there was no inheritance to mancipate, for nemo est
heres viventis—but the collective rights—familia, patrimonium—
of the testator.
$ 88. The mode of transferring obligations may be more properly
eonsidered hereafter, when we examine the titles by which Jus in
personam originates or terminates, 8 §§ 155—162 comm. Gaius
glanced at the titles to Hereditas and Obligatio because he was
treating of Res incorporales under which they are included; but
he should have abstained from discussing Obligatio because he is
now dealing with Jus in rem, and he should have abstained from
discussing Hereditas because he is now dealing with Res singulae.
DE USUCAPIONIBUS.
$ 40. Sequitur ut admoneamus
apud peregrinos quidem unum esse
dominium ; nam aut dominus quis-
que est, aut dominus non intelle-
gitar. Quo iure etiam populus
Romanus olim utebatur: aut enim
ex iure Quirifóum unusquisque do-
minus erat, aut non intellegebatur
dominus, sed postea diuisionem
accepit dominium, ut alus possit
esse ex iure Quiritium dominus,
alius in bonis habere.
$ 41. Nam si tibi rem mancipii
Beque mancipauero neque in iure
eessero, sed tantum tradidero, in
bonis quideni tuis ea res efficitur,
$ 40. We must next observe that
for aliens there is only one do-
minion and only one definition of
& proprietor, and so it was in an-
cient times with the people of Rome,
for a man had either quiritary do-
minion or none at all. "They after-
wards decomposed dominion so that
one person might have quiritary
dominion over a subject over which
another person had bonitary do-
minion.
§ 41. If a mancipable thing is
neither mancipated nor surrendered
by default in a fictitious vindication
but simply delivered, the bonitary
172
ex iure Quiritium uero mea per-
manebit, donec tu eam possidendo
usucapias; semel enim impleta usu-
capione proinde, pleno iure incipit,
id est et in bonis et ex iure Qui-
ritium tua res esse, ac si ea man-
cipata uel in iure cessa (esset.
$ 42. Veucapto autem) mobilium
quidem rerum anno conpletur, fundi
uero et aedium biennio; et ita lege
XiI tabularum cautum est.
$ 43. Ceterum etiam earum rerum
usucapio nobis conpetit quae non a
domino nobis traditae fuerint, siue
mancipti sint eae res siue nec man-
eipii, si modo eas bona fide accepe-
rimus, cum crederemus eum qui
traderet, dominum esse.
$ 44. Quod ideo receptum uidetur,
ne rerum dominia diutius in incerto
essent, cum sufficeret domino ad
inquirendam rem suam anni aut
biennü spatium, quod tempus ad
usucapionem possessori tributum
est.
§ 45. Sed aliquando etiamsi max-
ime quis bona fide alienam rem
possideat, non tamen illi usucapio
procedit, uelut si quis rem furtiuam
aut ui possessam possideat; nam
furtiuam lex xri tabularum usucapi
probibet, ui possessam lex Iulia et
Plautia.
$ 46. Item prouincialia praedia
usucapionem non recipiunt.
$ 47. (Item olim) mulieris quae
in agnatorum tutela erat, res man-
cipti usucapi non poterant, praeter-
quam si ab ipsa tutore (auctore)
traditae essent; idque ita lege X1i
tabularum cautum erat.
DE REBUS SINGULIS.
[1r. $$ 40—61.
dominion passes to the alienee, but
the quiritary dominion remains in
the alienor until the alienee acquires
it by usucapion; for as soon as
usucapion is completed, plenary do-
minion, that is, the union of boni-
tary &nd quiritary dominion, vests
in the alienee just as if he had
taken by mancipation or surrender
before & magistrate.
$ 42. Usucapion of movables
requires a year's possession for its
completion, of land and houses, two
years’ possession, a rule which dates
from the law of the Twelve Tables.
§ 43. Quiritary dominion may
also be acquired by usucapion even
on & non-proprietor's delivery of
possession, and in things either
mancipable or not mancipable, if
they are delivered to an innocent
alienee who believes the deliverer
to be proprietor.
$ 44. The reason of the law ap-
pears to be the inexpediency of
allowing dominion to be long un-
ascertained, the original proprietor
having ample time to look after his
property in the year or two years
which must elapse before usucapion
is complete.
$ 45. Some things, however, not-
withstanding the good faith of the
possessor, cannot be acquired by
usucapion, things, for instance, of
which the owner lost possession by
theft or violence, stolen things being
declared incapable of usucapion by
the law of the Twelve Tables, and
things taken with violence by the
lex Julia and Plautia.
$ 46. So, too, provincial land and
houses are incapable of usucapion.
$ 47. Formerly, when & woman
was under her agnate's guardian-
ship, her mancipable things were
not subject to usucapion, unless she
herself delivered possession of them
with her guardian's authority, and
this was an ordinance of the Twelve
Tables,
n. $§40-61.]
§ 48. Item liberos homines et res
sacras et religiosas usucapi non
manifestum est.
§ 49. Quod ergo uulgo dicitur
furtiuarum rerum et ui possessarum
usucapionem per legem Xl tabu-
larum prohibitam esse, non eo per-
tinet, ut ne ipee fur quiue per uim
possidet, usucapere possit (nam huic
alia ratione usucapio non competit,
quia scilicet mala fide possidet);
sed nec ullus alius, quamquam ab
eo bona fide emerit, usucapiendi ius
habeat.
$ 50. Vnde in rebus mobilibus
non facile procedit, ut bonae fidei
possessori usucapio conpetat, quia
qui alienam rem uendidit et tra-
didit, furtum committit; idemque
accidit etiam si ex alia causa tra-
datur. sed tamen hoc aliquando
aliter se habet; nam si heres rem
defuncto commodatam aut locatam
uel apud eum depositam, existimans
eam esse hereditariam uendiderit
aut donauerit, furtum non commit-
tit; item si is ad quem ancillae
ususfructus pertinet, partum etiam
suum esse credens uendiderit aut
donauerit, furtum non committit ;
fartum enim sine adfectu furandi
non committitur. aliis quoque mo-
dis accidere potest, ut quis sine
uitio furti rem alienam ad aliquem
transferat et efficiat, ut a possessore
usucapiatur.
$ 51. Fundi quoque alieni potest
aliquis sine ui possessionem nancisci,
quae uel ex neglegentia domini
uacet, uel quia dominus sine suc-
cessore decesserit uel longo tempore
afuerit ; guam si ad alium bona fide
accipientem transtulerit, poterit usu-
espere possessor; et quamuis ipse
qui uacantem possessionem nactus
est, intellegat alienum esse fundum,
tamen nihil hoc bonae fidei possessori
ad usucapionem nocet, (cwm) in-
probata sit.eorum sententia, qui
DE USUCAPIONIBUS.
173
$ 48. Free men, also, and things
sacred or religious, are obviously
not susceptible of usucapion.
$49. The common statement that
in things stolen or violently pos-
sessed, usucapion is barred by the
law of the Twelve Tables, means,
not that the thief or violent dis-
possessor is incapable of usucapion,
for he is barred by another cause,
his guilty knowledge; but that even
an innocent purchaser from him is
incapable of acquiring by usuca-
pion.
$ 50. Accordingly, in things
movable an innocent possessor can
seldom acquire dominion by usu-
capion, because he that sells and
delivers, or otherwise bargains and
delivers, possession of a thing be-
longing to another, is guilty of theft.
However, this admits of exception,
for an heir who believes a thing
lent or let to, or deposited with, his
ancestor to be a portion of the in-
heritance, and sells it or gives it
away, is not guilty of theft: again,
the usufructuary of a female slave
who believes her offspring to be his
property and sells it or gives it
away, is not guilty of theft; for
theft implies unlawful intention :
and similarly other circumstances
may prevent the crime of theft from
attaching to the delivery of a thing
belonging to another, and enable
the receiver to acquire by usu-
capion.
5 51. Land belonging to another
may be entered without violence,
when vacant by neglect of the
owner, or by his death without
leaving a successor, or his long
absence from the country, and an
innocent person to whom the pos-
session is transferred may acquire
the property by usucapion; for
though the original seizer of the
vacant possession knew that the
land belongs to another, yet his
knowledge is no bar to the usu-
174
putauerint furtiwwm fundum fieri
posse.
$52. Rursus ex contrario accidit,
ut qui sciat alienam rem se pos-
sidere, usucapiat, ueluti si rem here-
ditariam, cuius possessionem heres
nondum nactus est, aliquis posse-
derit ; nam ei concessum (est usu)-
capere, si modo ea res est quae
recipit usucapionem ; quae species
possessionis et usucapionis pro he-
rede uocatür,
§ 53. Et in tantum haec usu-
capio concessa est, ut et res quae solo
continentur, anno usucapiantur.
§ 54. Quare autem hoc casu etiam
soli rerum annua constituta sit usu-
capio, illa ratio est, quod olim rerum
hereditariarum possessione elut ip-
eae hereditates usucapi credebantur,
scilicet anuo. lex enim xii tabu-
larum soli quidem res biennio usu-
capi iussit, ceteras uero anno. ergo
hereditas in ceteris rebus uidebatur
esse, quia soli non est, quia neque
corporalis est. (et) quamuis postea
creditum sit ipsas hereditates usu-
capi non posse, tamen in omnibus
rebus hereditariis, etiam quae solo
tenentur, annua usucapio remansit.
$ 55. Quare autem omnino tam
inprobe possessio et usucapio con-
cessa, sit, illa ratio est, quod uolue-
runt ueteres maturius hereditates
adiri, ut essent. qui sacra facerent,
quorum illis temporibus summa ob-
geruatio fuit, et 4t creditores ha-
berent, a quo suum consequerentur.
$ 56. Haec autem species posses-
sionis et usucapionis etiam lucratiua
uocatur; nam sciens quisque rem
alienam lucri facit.
DE REBUS SINGULIS.
[rr. $$ 40-61,
capion of the innocent alienee, as
it is no longer held that theft can
be committed of land.
$ 52. On the other hand, know-
ledge of the existence of a pro-
prietor (mala fides) does not always
prevent usucapion, for any one may
seize a portion of an inheritance of
which the heir bas not yet taken
possession and acquire it by usu-
capion, provided it is susceptible of
usucapion, and he is said to acquire
by title of quasi successor.
$ 53. With such facility is this
usucapion permitted that even land
may be thus acquired in a year.
$ 54. The reason why even land
in these circumstances demands only
& year for usucapion is, that in an-
cient times the possession of portions
of the inheritance was held to be a
means of acquiring the inheritance
itself, and that, of course, in a year :
for while the law of the Twelve
Tables fixed two years for the usu-
capion of land and one year for the
usucapion of other things, an in-
heritance was held to fall under the
category of ‘other things,’ as it is
neither land nor corporeal: and
though it was afterwards held that
the universal succession was not
acquirable by usucapion, yet the
component hereditaments, including
land, continued acquirable by a
year’s possession.
§ 55. The motive for permitting
at all so unscrupulous an acqui-
sition was the wish of the ancient
legislator to accelerate the accept-
ance of successions, and thus pro-
vide persons to perform the sacred
rites, to which in those days the
highest importance was attached,
and to ascertain the persons whom
creditors might sue for payment of
their claims. |
$ 56. This mode of acquisition
is sometimes called gratuitous usu-
capion, for the possessor has notice
of another's ownership.
n. $$ 40-61.]
$57. Sed hoc tempore tam non
est lucratina. nam ex auctoritate
Hadriani senatusconsultum factum
est, ut tales usucapiones reuocaren-
tur. et ideo potest heres ab eo qui
rem usucepit, hereditatem petendo
proinde eam rem consequi, atque si
usucapta non esset.
$58. Necessario tamen herede
extante nihil ipso iure pro herede
nsucapi potest.
$59. Adhuc etiam ex aliis causis
&ciens quisque rem alienam usucapit.
nam qui rem alicui fiduciae causa
mancipio dederit uel in iure cesserit,
si eandem ipse possederit, potest
usucapere, anno scilicet, (etiam)
soli si sit. quae species usucapionis
dicitur usureceptio, quia id quod
aliquando habuimus, recipimus per
usucapionem.
$ 60. Sed fiducia contrahitur aut
eum creditore pignoris iure, aut cum
amico, quo tutius nostrae res apud
eum sint; et siquidem cum amico
contracta sit fiducia, sane omni
modo conpetit ususreceptio; 8i uero
cum creditore, soluta quidem pecunia
omni modo conpetit, nondum uero
soluta ita demum conpetit, si neque
conduxerit eam rem a creditore de-
bitor, neque precario rogauerit, ut
eam rem possidere liceret; quo casu
lucratiua ususcapio conpetit.
$61. Item si rem obligatam sibi
Populus uendiderit eamque dominus
posederit, concessa est ususrecep-
tio; sed hoc casu praedium biennio
usurecipitur. et hoc est quod uulgo
dicitur ex praediatura possessionem
üsurecipi; nam qui mercatur a po-
pulo, praediator appellatur.
DE USUCAPIONIBUS,
175
$ 57. In the present day, how-
ever, it is ineffectual, for the Senate
on the motion of Hadrian decreed
that such usucapions are revocable,
and the heir by suing for the in-
heritance may recover possession
just as if the property had never
been transmuted.
$ 58. A necessary heir is protected
by the civil law against the loss
of hereditaments by this usuca-
pion.
$ 59. There are other conditions
under which a knowledge of an-
other's ownership is no bar to usu-
capion. After a fiduciary manci-
pation or surrender of his property,
if the owner subsequently has pos-
session of it, he recovers his do-
minion even over land in the period
of a year, by what is called a pos-
sessive recovery, because a foregoing
dominion is thereby re-acquired,
$60. The fiduciary alienee is
either a creditor in the position of
mortgagee or a friend and protector
of the alienors property in the
character of depositary: in the
latter case the owner is always
capable of possessive recovery: if
the alienee is & creditor, the owner
can always re-acquire after payment
of the debt; but before payment of
the debt he can only re-acquire
provided he has not hired the thing
of his creditor nor possessed it in
consequence of request and licence,
&nd thus he re-acquires without
giving a consideration.
§ 61. Again, the owner of a thing
mortgaged to the state and sold for
non-payment of the mortgage debt
may re-acquire it by possession, but
in this case, if it is land, usucapion
is biennial: and this is the meaning
of the saying, that after praediatura
(a public sale) land is recoverable
by (biennial) possession, a purchaser
from the state being called praediator.
§§ 40, 41. Roman law originally only recognized one kind of
176 DE REBUS SINGULIS. (x. $$ 40-61.
dominion, called emphatically, quiritary dominion. Gradually,
however, certain real rights arose which, though they failed to
satisfy all the elements of the definition of quiritary dominion,
were practically its equivalent, and received from the courts a
similar protection. These real rights might fall short of quiritary
dominion in three respects, (1) either in respect of the persons in
whom they resided, (2) or of the subjects to which they related,
(3) or of the title by which they were acquired.
(1.) To be capable of quiritary dominion a man must have one
of the elements of a Roman citizenship. Jus quiritium, right
. quiritary, sometimes, indeed, denotes all the elements of civitas
Romana, Roman citizenship: see 8 § 75, 1 $ 35 comm. Beneficio
principali Latinus civitatem Romanam accipit si ab imperatore jus
quiritium impetraverit, Ulpian 3, 2. But the only element of
citizenship required for quiritary dominion was commercium, and
as we have seen that the Latinus possessed commercium without
connubium, the Latinus was capable of quiritary dominion. The
alien (peregrinus) on the contrary was incapable: yet he had an
equivalent real right, called by Gaius dominion, § 40, which he
acquired by titles of natural law (jus gentium), e.g. tradition,
occupation, accession, praescriptio, &c., and could maintain by
a real action in the court of the praetor peregrinus or praeses
provinciae.
(2.) Provincial land was not.capable of quiritary dominion.
Originally, indeed, private dominion appears to have been confined
to movables ; and immovables, at least lands, were only subject to
the other kind of dominion, public dominion or communism. Pri-
vate dominion, however, first invaded a portion of the land, to which
it was confined within the historic period, and finally superseded
public dominion over all the ancient Roman territory; and ager
publicus, as opposed to ager privatus, ceased to exist on Italian soil.
But in the provinces subsequently conquered, land continued to the
end subject exclusively to public dominion; and thus the essential
feature of feudal tenure, the exclusive vesting of absolute or ulti-
mate dominion over land in the sovereign, a principle commonly
supposed to have been first introduced into Europe by the invading
German hordes, had already existed in full force over by far the
greater portion of the Roman world. It is true that the provinces
were divided into so-called ager publicus aud ager privatus; but
ager privatus, as well as ager publicus, was subject to a vectigal,
n. $$ 40—61.] DE USUCAPIONIBUS. 177
and the tenant of the one and lessee of the other were equally
devoid of absolute ownership. An estate in ager privatus was
acquirable by titles of natural law (jus gentium) and recoverable by
real action (vindieatio), and was sometimes called dominion; but
was theoretically only possessio or ususfructus, $ 7.
(3.) Bonitary dominion was distinct both from an alien's dominion
and from dominion over provincial land : it may be defined as the
property of à Roman citizen in a subject capable of quiritary pro-
perty, acquired by a title not known to the civil law, but intro-
duced by the praetor, and protected by his imperium or supreme
executive power. We have seen, for instance, that only non-man-
eipable things were capable at civil law of transfer by tradition ;
suppose, now, that a mancipable thing were conveyed to a vendee
by tradition; the process would not make him quiritary proprietor ;
he would be no better than a bona fide possessor, until by the
lapse of a year or of two years he acquired quiritary property by
usucapion. The praetor, however, assisted the less cumbrous mode
of alienation by treating the vendee as proprietor; by giving him,
if in possession, the exceptio rei venditae et traditae against the
vendor who sought to recover as quiritary proprietor, and enabling
the vendee, if dispossessed, to recover against the quiritary pro-
prietor as well as against any third person by utilis vindicatio, called
actio Publiciana, in which he would meet the plea of quiritary
ownership (exceptio dominii) by the replicatio rei venditae et traditae
or by the replicatio doli. Bonitary proprietorship, or proprietorship
acquired by titles unknown to the civil law, when once invented,
was employed by the praetor in other legislative innovations,
particularly, as we shall see hereafter, in creating universal succes-
sions unknown to the civil law in bankruptey, and in testamentary
and intestate devolution (bonorum possessio) These bonitary pro-
prietors could assert their rights by an action, real or personal, based
on a fiction of inheritance (formula Serviana, 4 $ 35), or an action,
real or personal, not based on fiction, but in which they appeared
as procurators of the original proprietor (formula Rutiliana, 4 $ 35).
The barbarous term Bonitary (formed from the classical, in bonis
esse, in bonis habere), has the authority of Theophilus, who speaks
of beczórgs Bovirdpios, 1, 5, 4; he also calls bonitary dominion
natural dominion.(¢votxy beamoreía), as opposed to statutory, civil,
or quiritary dominion (évrouos deo7oreia).
Actio Publiciana was the remedy in the alienation of anything
N
178 DE REBUS SINGULIS. [rr. $$ 40-61.
whatever by a non-proprietor to an innocent alienee (bona fide pos-
sessor) in case the latter lost possession of it.
Usucapion, as in the case of bonitary ownership, would in the lapse
of time have given the alienee plenary dominion, and, with it, vindi-
eation in the event of a loss of possession ; but if he lost possession
whilst usucapion was still incomplete, he would have had no real
action (for, not being owner, he could not vindicate), if the praetor
had not allowed him to sue by the actio Publiciana, which treated
bona fide possession, that is, usucapion possession, or the inception
of usucapion, as if it were plenary dominion in respect of every
one except the rightful owner. The latter, however, could defend
himself in this action successfully against a mere bona fide possessor
by the exceptio dominii, or bring a vindication against a bona fide
possessor who retained possession.
§ 42. The usucapion of movables may be compared with the
English law of Estrays. After proclamation in the church and
two market towns next adjoining the place where they are found,
the property in Estrays, i.e. tame animals whose owner is not
known, vests in the crown or the lord of the manor, i.e. the grantee
of the crown, on the expiration of a year and a day from the finding.
§§ 52-60. A successor (heres) was either voluntarius, empowered
to accept or reject the succession, or necessarius, designated without
any such power of election. Heres voluntarius was either an
agnate entitled to succeed an intestate, or any devisee, not being a
child of the testator, entitled under a will. Heres necessarius was
either a manumitted slave, or a self-successor (suus heres), that is, a
child under power of the testator or intestate, § 152. In every
ease of voluntarius heres, so long as the heir had not taken pos-
session, any stranger was permitted to seize parte of the inherit-
ance and acquire property therein by usucapion. The only title
(causa, titulus) required for this aequisition was the overture or
delation of the inheritance and vacancy of possession. This pos-
session, which Gaius (§ 52) calls pro herede (see Dig. 5, 3, 9) is
more properly called pro possessore. Cf. 4, 144. ‘ Possessor, as
possessor, is the occupant, who, asked why he possesses, answers,
“ Because I possess,” and does not claim to be heir even mendaci-
ously, and has no title of possession to allege.’ The constitution of
Hadrian (Se. Juventianum D. 5, 3, 20, § 6) did not prevent the
usucapion, but made it nugatory by allowing the heir to recover the
hereditaments by real action (hereditatis petitio, or the interdict
n. §§ 40-61.] DE USUCAPIONIBUS. 179
Quorum bonorum), just as if the usucapion had never been com-
pleted.
Though the occupant of the vacant hereditament was called
praedo, his possession, being encouraged by the lawgiver, was not
unlawful until restitution was claimed, Savigny, § 264. This pos-
session 1s probably the key to an enigmatical rule in Roman law:
ipsum sibi causam possessionis mutare non posse, Dig. 41, 8, 33,
$1; causam possessionis neminem sibi mutare posse, Dig. 41, 5, 2,
$1. ‘No man can change at pleasure his title of possession. With
the intention, apparently, of limiting the operation of possessio pro
possessore, an anomalous institution of questionable expediency,
the rule declares that a person who commences his possession or
detention of a thing in the character of a vendee from a non-
proprietor, or as lessee, borrower, depositary, or even thief, shall
not be able, on the death of the true proprietor, to accelerate or
initiate usucapion by merely professing that he eeases to hold in his
former character and proceeds to hold as possessor pro possessore.
Possessio pro possessore was perhaps the germ of the intestate
succession of next of kin er cognati, a succession, as we shall see, not
originally recognized in Roman law ; at least, the family or next of
kin of an intestate would generally have the best chance of seizing
any movables or immovables that he left; and perhaps it was this
equitable result, no less than the object mentioned by Gaius, that, in
the absence of a regular succession of eognati, led the public to look
on possessio pro possessore as a rational and salutary institution.
The institution of usucapio pro herede and pro possessore, or
rather the Sc. Juventianum by which it was defeated, has left its
traces in the formula, still to be found in the Digest, of the interdict
Quorum bonorum, the remedy whereby a person who claimed not
as civil heir (heres), but as praetorian successor (bohorum possessor),
established his right to succeed and recovered possession of the here-
ditaments. See 4 $ 144. To leave these traces in the wording of the
interdict was according to Vangerow no oversight on the part of
Justinian, as although in his legislation the last remnants of the
institution of usucapio pro possessore, that is by a mala fide pos-
sessor, had been definitively abolished ; yet usucapio pro herede, that
is, by a bona fide possessor, or one who sincerely though mistakenly
held himself to be heir, was still recognized by jurisprudence, $ 820.
$ 60. For fiducia cum creditore see 3 $$ 90, 91, comm., and for
an example of fiducia cum amico see 1 § 182 comm,
N 2
180 DE REBUS SINGULIS. [n. $$ 40-61.
§ 61. The circumstances contemplated seem to be as follows: A
proprietor is debtor to the state, and his lands are mortgaged as
security for the debt. On default of payment, the state exercises
the power of sale: if the debtor is not turned out of possession by
the purchaser (praediator) in two years he recovers his proprietorship
by usureception. It seems that the sale by the state was merely the
transfer of the mortgage; so that, if the debtor afterwards satisfied
the purchaser, he recovered his land. Kuntze, Excursus, 436.
Provincial lands were not subject to Usucapion: they might
however be acquired by an analogous title, longi temporis prae-
scriptio, Le. possession for ten years during the presence of the
former proprietor (inter praesentes), and for twenty years during his
absence (inter absentes).
Usucapion required something beyond mere possession for a cer-
tain period ; and something beyond what we hereafter call Interdict
possession, 4 § 148. The conditions of possession which entitled
& possessor to appeal for the protection of his possession to the
praetor's interdict were merely that it should be adverse (with the
knowledge of the other party and without his permission), and, in
respect of the other party, commenced without violence (nec vi nec
clam nec precario. To produce Usucapion (1) the thing to be ac-
quired must be capable of usucapion, i.e. not taken by theft or
violence from the former proprietor; (2) the possession of the
usucapient must be based on a justa causa or titulus, such as con-
tract or bequest ; (3) and commenced with bona fides on his part.
Bona fides, in the case of original acquisition, e.g. usucapio pro
derelicto, is à belief that the thing is res nullius, has no proprietor.
In the case of derivative acquisition it is the belief that the auctor,
or person from whom the thing is derived, is either proprietor or,
if not proprietor, has a power of disposition as agent, guardian,
mortgagee, or otherwise. Vangerow, $321. The Canon law requires
during the whole period of prescription the bona fides which the
Civil law only requires at the inception.
Justinian remodelled the law of Usucapion. Cf.Inst.2, 6. For
movables he extended the period from one year to three years: for
immovables he abolished the distinction between Italian and pro-
vincial land, and in every case required ten years’ possession if the
parties were domiciled in the same province, and twenty years’
possession if they were not domiciled in the same province. Further,
he introduced a new usucapion (longissimi temporis praescriptio),
n. 6$ 40-61. ] DE USUCAPIONIBUS. 181
which was governed by less stringent conditions than the ordinary
usucapion (longi temporis praescriptio). It applied both to movables
and immovables, was not vitiated by certain flaws in the subject
(furtiva, violenta), and needed no support of any titulus, but only
required bona fides in its inception on the part of the possessor,
Cod. 7, 39, 8. It was completed in thirty years.
Usucapion, particularly in this its later form, requires to be care-
fully distinguished from the Limitation of actions (temporalis prae-
scriptio) with which it has been coordinated by some civilians under
the name of Acquisitive, as opposed to Extinctive, Prescription. We
shall see, 4 $110, that all actions were originally divided into tem-
porales and perpetuae, temporales being such as could only be brought
within a certain period (e.g. in the case of penal actions, a year) from
the time when the right of action accrued, perpetuae such as were
subject to no such limitation. Subsequently, however, even the lat-
ter were limited, and no action could be brought after thirty years
from the nativity of the action or the time when the right of action
accrued (actio nata) In the case of personal actions there is no
danger of confusing Usucapion and Limitation. Usucapion implies
possession, and in the case of personal actions, or jus in personam,
no such thing as possession is conceivable, for possession only relates
to the subjects of jus in rem. Usucapion and the Limitation of real
actions are more similar, but even here a distinction may be recog-
nized. ‘Limitation is the extinction of a right by neglect of the
person entitled, by his omission to enforce his remedy : Usucapion
is the aequisition of a right by something positive on the part of
the acquirer, his strictly defined possession during a certain number
of years. Even extraordinary Usucapion requires, as we have seen,
bona fides in the commencement of possession : no such condition
is attached to Limitation or temporalis praescriptio.
English law originally only recognized Usucapion in the case of
incorporeal hereditaments or servitudes, e.g. rights of way ; for the
acquisition of which the Prescription Act, 2 and 3 Will. 4, c. 71, re-
quires possession during twenty years. Moreover since the Act for the
limitation of real actions, 3 and 4 Will. 4, c. 27, deprives a proprietor
of land of his right as well as his remedy if he omit to bring his
action to recover it within twenty years after the nght accrued (a
limit which by the 37 and 38 Vict. c. 57 was reduced to twelve years),
Usueapion (Acquisitive prescription) in corporeal as well as incor-
poreal hereditaments may be said to be recognized in English law.
182 DE REBUS SINGULIS. [1.85 40-61.
Besides the civil titles which we have examined, two others are
mentioned by Ulpian : Singularum rerum dominia nobis adquiruntur
mancipatione, traditione, in jure cessione, usucapione, adjudicatione,
lege, 19, 2.
Adjudication (for the nature of which see 4 § 42), whereby pro-
perty might be taken from one individual and vested in . another
without any of the ordinary methods of conveyance, nay be com-
pared in its operation to the vesting orders made by the Court of
Chancery under the Trustee acts. When trustees are disabled by
lunacy or infancy from dealing with the estates vested in them, the
Court of Chancery is empowered to make orders the effect of which
is that the estate becomes immediately vested in the substituted trus-
tees as effectually as if a conveyance had been duly made by the per-
son previously entitled to the legal estate. Another parallel is to be
found in the awards of certain commissioners acting under powers
given by act of parliament. Thus the order of the Inclosure commis-
sioners for exchange and partition of land closely resembles in subject
and effect the adjudicatio of a judex in the actio finium regundorum.
Lex is an ambiguous and miscellaneous title. It includes title
by escheat or forfeiture (caducum) under the lex Papia Poppaea, and
bequest or legacy (legatum), a title deriving its validity from the
lex of the Twelve Tables, Ulpian, 19, 17. Extending our view
from res singulae, to which Ulpian -confines himself, to universi-
tates, lex was an apt denomination of title by will at the period
when wills required the ratification of the Comitia Calata, 2 $ 101,
as at that time testamentary dispositions were really acts of the
legislature. "Title by lex in this case may be compared to convey-
ances by private act of parliament in English jurisprudence.
It may assist to clear our conception of title if we observe that
the title * Lege is ambiguous, and that (1) while one of its mean-
ings implies an absence of all title, (2) another denotes a miscella-
neous group of heterogeneous titles.
(1) The only case in which Law can be said in any distinctive
sense to be a cause of acquisition is privilegium or private law.
The acquisition of a right by immediate grant from the sovereign
(private act of the legislature, private act of parliament) is unlike
the acquisition of a person entitled under some general disposition
of a universal law. Acquisition by bequest or escheat is not an
acquisition by law in any pre-eminent manner, but only in the same
degree as is acquisition by mancipation or usucapion or any other
1. $$ 40-61.] DE USUCAPIONIBUS. 183
title, for all these acquisitions are equally founded on law or the
general disposition of the legislator. But in acquisition by privi-
legium there is properly speaking neither title nor law. Law is
properly speaking a universal proposition, annexing a right or duty
to a title: it knows nothing of individual persons, but stops short
at classes of persons, classes, that i$, defined by the title. Again,
title is properly speaking a contingent fact distinct from a corre-
sponding law: a faet which may occur an indefinite number of
times, and entitle, that is, invest with rights or duties, an indefinite
number of persons, in accordance with the dispositions of one and
the same unchanging law. Title, loosely and inaccurately defined
as a fact investing a person with a right, would include a privilege,
i.e. a law conferring a right immediately on a given individual
without the intervention of a fact distinguishable from the law :
but title, properly defined as an intervening fact through which
a law confers a right mediately, excludes privilege.
Whenever there is a genuine title and genuine law, the title is
interposed between the right or duty and the person therewith in-
vested, just as the middle term is interposed between the major and
minor terms of a syllogism, E.g. All persons marked, stamped,
eharacterized by a certain fact (B), are invested with a certain right
or duty (À); a given individual person (C) bears the badge, mark,
or stamp of this fact (B); therefore this individual (C) is invested
with these rights or duties (A). A genuine law is only the major
premiss, the universal proposition, all B is A. Theconclusion, C is
A, stating the rights or obligations of the individual, is a mediate or
dependent proposition, depending partly on the law and partly on an
independent fact, the minor premiss C is B, which often requires to
be ascertained by judicial investigation. The condition, represented
by the middle term, which connects or disconnects the right or
duty, represented by the major term, with a person, represented
by the minor term, is the title. In a privilegium we have no such
premisses and no such middle term. The conjunction of C with A,
the investment of an individual with rights (or the disjunction of
C from A, the spoliation of his rights), is here an ungrounded pro-
position, unwarranted by any recognized title; in other words, un-
supported by any subsumption of fact under law.
(2) In Bequest and Escheat and the succession of necessarius
heres there is a genuine law and a genuine title, but the law is not
the title, any more than it is in any other mode of acquisition.
184 DE REBUS SINGULIS. [rr. $$ 40-61.
Either because these modes include fewer voluntary acts than some
closely allied modes (for instance, the necessarius heres acquires
without aditio, which is a parcel of the title of voluntarius heres),
or for some other reason, divers modes are lumped together under
the head of acquisition by lex. The name, however, besides being
a misnomer, is merely a sink or receptacle of miscellaneous un-
related titles, just as we shall find in the doctrine of obligations
that miscellaneous titles (variae causarum figurae) are lumped
together under the denomination of quasi-contract.
ADQUISITIONES DOMINII NATURALES.
$ 65. Ergo ex his quae diximus
apparet quaedam naturali ure
alienari, qualia sunt ea quae tradi-
tione alienantur; quaedam ciuili,
nam mancipationis et in iure ces-
sionis et usucapionis ius proprium
est cluium Romanorum.
$66. Nec tamen ea tantum quae
traditione nostra fiunt, | naturali
nobis ratione adquiruntur, sed
etiam—| occupando ideo—erimus,
quia antea, nullilus essent ; qualia
sunt omnia quae terra mari caelo
capiuntur.
$67. Itaque si feram bestiam aut
uolucrem aut pis|cem————cap-
tum eousque nostrum esse
intellegitur, donec nostra custodia
coerceatur ; cum uero custodiam
nostram euaserit et in naturalem
libertatem se receperit, rursus occu-
pantis fit, quia nostrum esse desinit ;
naturalem autem libertatem recipere
uidetur, cum aut oculos nostros
euaserit, aut licet n conspectu sit
nostro, difficilis tamen etus perse-
cutio sit.
$ 68. In Ais autem animalibus
quae ex consuetudine abire et redire
solent, ueluti columbis et apibus,
item ceruis qui in siluas ire et
redire solent, talem habemus regu-
lam traditam, ut si reuertendi ani-
mum habere desierint, etiam nostra
esse desinant et fiant occupantium ;
$ 65. Thus it appears that some
modes of alienation are titles of
natural law, as delivery of posses-
sion, and others of civil law, as
mancipation, surrender, usucapion,
for these are titles confined to
citizens of Rome.
$ 66. Another title of natural
law, besides Tradition, is Occupa-
tion, whereby things not already
subjects of property become the pro-
perty of the firstoccupant, asthe wild
inhabitants of earth, air, and water,
as soon as they are captured.
$ 67. For wild beasts, birds, and
fishes, as soon as they are captured,
become, by natural law, the pro-
perty of the captor, butonly continue
such so long as they continue in
his power ; after breaking from his
custody and recovering their natural
liberty, they may become the pro-
perty of the next occupant ; for the
ownership of the first captor is ter-
minated. Their natural liberty is
deemed to be recovered when they
have escaped from his sight, or,
though they continue in his sight,
when they are difficult to recapture.
$ 68. In those wild animals, how-
ever, which are habituated to go
away and return, as pigeons, and
bees, and deer, which habitually
visit the forests and return, the rule
has been handed down, that only
the cessation of the instinct of re-
turning is the termination of owner-
1. §§65-79.] ADQUISITIONES DOMINII NATURALES.
reuertendi autem animum uidentur
desinere habere, cum reuertendi
consuetudinem deseruerint.
$69. Ea quoque quae ex hostibus
eapiuntur, naturali ratione nostra
fiunt.
$ 70. Sed et id quod per adluui-
onem nobis adicitur, eodem iure
nostrum fit; per adluuionem autem
id uidetur adici quod ita paulatim
flumen agro nostro adicit, ut aesti-
mare non possimus, quantum quoquo
momento temporis adiciatur; hoc est
quod uulgo dicitur per adluuionem
id adici uideri quod ita paulatim
adicitur, ut oculos nostros fallat.
$71. Itaque si flumen partem
aliquam ex tuo praedio reaciderit et
ad meum praedium pertulerit, haec
pars tua ma|net.
$ 72. A£si in medio flumine in-
sula nata sit, haec eorum omnium
communis est qui ab utraque parte
fluminis prope ripam praedia possi-
den£; si uero non slt in medio flu-
mine, ad eos pertinet qui ab ea
parte quae proxima est, iuxta
ripam praedia habent.
$ 73. Praeterea id quod in solo
nostro ab aliquo aedificatum est,
quameis ille suo nomine aedifica-
werit iure naturali nostrum fit,
quia superficies solo cedit.
$ 74. Multoque magis id accidit et
in planta quam quis in solo nostro
posuerit, si modo radicibus terram
conplexa fuerit.
$ 75. Idem contingit et in fru-
mento quod in solo nostro ab aliquo
satum fuerit.
$ 76. Sed si ab eo petamus
fundum uel aedificium, et inpensas
in aedificium uel in seminaria uel
in sementem factas ei soluere noli-
mus, poterit nos per exceptionem
doli mali repellere, utique si bonae
fidei possessor fuerit.
185
ship, and then the property in them
is acquired by the next occupant ;
the instinct of returning is held to
be lost when the habit of returning
is discontinued.
$ 69. Capture from an enemy is
another title of property by natural
law.
$ 70. Alluvion is another mode
of acquisition by the same code.
Alluvion is an addition of soil to
land by a river, so gradual that in
short periods the change is imper-
ceptible; or, to use the common ex-
pression, a latent addition.
$71. But & parcel of your land
swept away by a river, and carried
down to mine, continues your pro-
perty.
§ 72. An island that rises in the
middle of a river is the common
property of the proprietors on both
banks of the river; ifit is not in
the middle of the stream, it belongs
to the proprietors of the nearer
nk.
$ 73. Again, a building erected
on my soil, though in the name and
for the use of the builder, belongs
to me by the natural code; for the
ownership of a superstructure fol-
lows the ownership of the soil.
§ 74. The same occurs a fortiori
when trees are planted on my land,
as soon as they strike root.
§ 75. Similarly, when corn is
sown on my land.
§ 76. But if I bring an action to
recover the produce or the building,
and refuse to compensate the other
party for his outlay on the building or
the plantation or the cornfield, he will
defeat my action by the plea of fraud,
if he was an innocent possessor.
186
§ 77. Eadem ratione probatum
est, quod in chartulis siue in mem-
branis meis aliquis scripserit, licet
aureis litteris, meum esse, quia
litterae chartulis siue membranis
cedunt. itaque si ego eos libros
easue membranas petam nec inpen-
sam scripturae soluam, per excep-
tionem doli mali summoueri potero.
§ 78. Sed si in tabula mea aliquis
pinxerit ueluti imaginem, contra
probatur; magis enim dicitur tabu-
lam picturae cedere. cuiusdiuersita-
tis uix idonea ratio redditur; certe
secundum hano regulam si me
possidente petas imaginem tuam
esse, nec soluas pretium tabulae,
poteris per exceptionem doli mali
summoueri; at si tu possideas, con-
Bequens est ut utilis mihi actio
aduersum te dari debeat; quo casu
nisi soluam inpensam picturae,
poteris me per exceptionem doli
mali repellere, utique si bonae fidei
possessor fueris. illud palam est,
quod siue tu subripueris tabulam
Blue alius, conpetit mihi furti actio.
$ 79. In aliis quoque speciebus
naturalis ratio requiritur. proinde
8i ex uuis (aut oliuis aut spicis)
meis uinum aut oleum aut frumen-
tum feceris, quaeritur utrum meum
sit id uinum aut oleum aut frumen-
tum, an tuum. item si ex auro aut
argento meo uas aliquod feceris, uel
ex tabulis meis nauem aut armari-
um aut subselium fabricaueris ;
item si ex lana mea uestimentum
feceris, uel si ex uino et melle meo
mulsum feceris, siue ex medica-
mentis meis emplastrum uel colly-
rium feceris, (quaeritur utrum tuum
sit id quod ex meo effeceris,) an
meum. quidam materiam et sub-
stantiam spectandam esse putant,
id est ut cuius materia sit, illius et
res quae facta sit uideatur esse,
idque maxime placuit Sabino et
Cassio. alil uero eius rem esse
DE REBUS SINGULIS.
(rr. $$ 65-79.
$ 77. Similarly, the writing in-
scribed on my paper or parchment,
even in letters of gold, is acquired to
me, for the property in the lettera
follows the property in the paper or
parchment; but if I sue for the books
or parchment without offering com-
pensation for the writing, my action
will be defeated by the plea of fraud.
$ 78. The canvas belonging to
me, on which another man has
painted a picture, is subject to a
different rule, for the ownership of
the canvas is held to follow the
ownership of the painting: a differ-
ence which scarcely rests on a suf-
ficient reason. By this rule, if I
am in possession, and you claim the
peinting without offering the price
of the canvas, I may defeat your
claim by the plea of fraud. If you
are in possession, I may claim the
reconveyance of the canvas in &
modified action, but unless I offer
the price of the painting, you defeat
me by pleading fraud, if you are an
innocent possessor. Itiscertain, that,
if you or another purloined the can-
vas, I can bring an action of theft.
$ 79. On a change of species,
also, we, have recourse to natural
law to determine the proprietor.
Thus, if grapes, or olives, or sheaves,
belonging to me, are converted by
another into wine, or oil, or corn, a
question arises whether the pro-
perty in the corn, wine, or oil, is in
me, or in the author of the con-
version ; or if my gold or silver is
manufactured into a vessel, or a
ship, chest, or chair is constructed
from my timber, or my wool is
made into cloth, or my wine and
honey are made into mead, or my
drugs into a plaster or eye-salve,
it becomes & question whether the
property in the new product is vested
in me or in the manufacturer. Ac-
cording to some, the material or sub-
stance is the criterion; that istosay,
the owner of the material is to be
1. § 65-79.] ADQUISITIONES DOMINII NATURALES.
putant qui fecerit, idque maxime
diuersae scholae auctoribus uisum
est; sed eum quoque cuius materia
et substantia fuerit, furti aduersus
eum qui subripuerit, habere actio-
nem; nec minus aduersus eundem
comdictionem ei competere, quia
extinctae res, licet uindicari non
pessint, condiei tamen furibus et
quibusdam aliis possessoribus pos-
sunt,
187
deemed the owner of the product;
and this was the doctrine of Sabinus
and Cassius; according to others the
ownership of the product is in the
manufacturer, and this was the doc-
irine of the opposite school; who
also held that the owner of the sub-
stance or material could maintain an
action of theft against the purloiner,
or an action for reconveyance, be-
cause, though the destruction of
property is a bar to a vindication,
it is no bar to a reparative personal
action (condictio furtiva) against
the thief and (condictio sine causa)
against those who are enriched with-
out a cause by the loss of the ex-pro-
prietor. (Savigny, vol. 5, p. 524.)
QUIBUS ALIENARE LICEAT VEL NON.
$62. Accidit aliquando, ut qui
dominus sit, alienandae rei potesta-
tem non habeat, et qui dominus non
sit, alienare poesit.
$63. Nam dotale praedium ma-
ritusinuita muliere per legem Iuliam
prohibetur alienare, quamuis ipsius
st uel mancipatum ei dotis causa
uel in iure cessum uel usucaptum.
quod quidem ius utrum ad Italica
tantum praedia an etiam ad pro-
uincialia pertineat, dubitatur.
$ 64. Ex diuerso agnatus furioti
curator rem furio|si alienare potest
ex lege XII tabularum; item pro-
curator — | est; item creditor
pignus ex | pactione, quamuis eius
ea res non eit. sed hoc forsitan
ideo uideatur fieri, quod uoluntate
debitoris intellegiturpignusalienari,
qui olim pactus est, ut liceret credi-
tori pignus uendere, si pecunia non
soluatur.
$ 62. It sometimes occurs that a
proprietor has not a power of alien-
ation, and that a non-proprietor has
& power of alienation.
$63. The alienation of dower
land by the husband, without the
consent of the wife, is prohibited by
the lex Julia, although the husband
is proprietor of the land by its man-
cipation as dower, or by surrender
before a magistrate, or by usucapion.
Whether this disability is confined
to Italian soil, or extends to the
provinces, authorities differ.
§ 64. Contrariwise, an agnate, as
a lunatic’s committee is empowered
to aliene his property by the law of
the Twelve Tables; and so is an
agent (when invested by his prin-
cipal with free power of administra-
tion. Inst. 2, 1, 43). Again, a
pledgee, in pursuance of his conven-
tion, may aliene the pledge, though
not proprietor ; this, however, may
be said to rest on the assent of the
pledgor presumed to be previously
given in the contract of pledge which
empowered the pledgee to sell in
default of payment.
188 DE REBUS SINGULIS. [1r. $$ 65-79.
§ 65. Tradition or transfer of possession, as we have seen, was
admitted in the civil law as a mode of transferring quiritary property
in such non-mancipable things as were corporeal: in mancipable
things it could only transfer bonitary property. In Justinian's
time Tradition had superseded Surrender in court and Mancipation ;
and transfer of possession was the universal solemnity for transfer
of dominion.
If we consider Surrender, Mancipation, Tradition, we shall see
that they are only three forms of one identical title, Alienation.
The substance or essence of the title, the intention on the one
side to transfer property, on the other to accept it, is the same in
all three; it is only the adventitious or accidental or evidentiary
(3 § 92) portion of the title in which they differ.
Although delivery of possession, like the solemnities of mancipa-
tion and surrender, is, as compared with the will or intention of the
parties, only an evidentiary and declaratory part of the title, yet both
parcels, the external as well as the internal act, are indispensable in
the transfer of dominion. Traditionibus et usucapionibus dominia
rerum, non nudis pactis, transferuntur, Cod. 2, 3, 20. ‘ Tradition
and usucapion, not naked convention, operate a transfer of dominion.’
We have already noticed exceptions to this rule in the case of
servitus, hypotheca, societas, 8 31. Again, Nunquam nuda tra-
ditio transfert dominium sed ita si venditio vel aliqua justa causa
praecesserit propter quam traditio sequeretur, Dig. 41, 1, 81. * Naked
delivery does not transfer property, but only when it is the fulfil-
ment of a sale or some other adequate disposition) It is clear that
mere Tradition, or transfer of physical control, without any further
element of Title, cannot pass Dominion, for in Loan for use (commo-
datum) tradition merely passes Detention without Possession ; in
Pledge (pignus), it passes Possession without Property ; in Deposit,
it sometimes passes Detention and sometimes Possession. The cases
in which Property is passed by Tradition may be reduced to three
classes, traditio donandi animo, traditio credendi animo, and tra-
ditio solvendi animo. In the first, it simply confers property on
the donee; in the second, it confers property on the transferee,
and subjects him to an obligation ; in the third, it confers property
on the transferee, and discharges the transferor of an obligation.
In the two latter cases, i.e. tradition by way of loan (mutui datio)
and tradition by way of payment (solutio), the disposition or justa
causa accompanying tradition, contains much that is unessential to
n.$$65—79.] ADQUISITIONES DOMINII NATURALES. 189
the transfer of dominion, the only absolutely essential element being
the intention of the parties to give and take dominion. In Donation,
the justa causa traditionis consists solely of this essential element.
The justa causa, then, which must accompany tradition, must
involve the animus or voluntas transferendi dominii, and this, appar-
ently, is given as the whole of the matter in a passage of Gaius
quoted in the Digest : Hae quoque res, quae traditione nostrae fiunt,
jure gentium nobis acquiruntur; nihil enim tam conveniens est
naturali aequitati, quam voluntatem domini volentis rem suam
in alium transferre ratam haberi, Dig. 41, 1, 9, $8. * Tradition is
a natural mode of acquisition, for it is a plain dictate of reason that
the will of an owner to transfer his ownership to another should be
allowed to take effect."
Delivery sometimes precedes the intention to transfer, for in-
stance, in a conditional sale: in which case the transfer of property
is suspended until the condition is fulfilled.
The transferee may be an incerta persona; for instance, when
money is scattered among a mob by a praetor or consul (missilium
jactus), Inst. 2, 1, 46.
Herein Dominion (jus in rem) differs from Obligation (jus in
personam). When an Obligation is created, the payee or creditor
or person on whom a nght is conferred, cannot be incerta persona ;
at least jurisprudence had not recognized an obligation or personal
right vested in incerta persona before the invention of papers pay-
able to the holder or bearer: and here the admissibility of incerta
persona as creditor is effected by the introduction of jus in rem into
jus in personam. The incorporeal obligation (jus in personam), is,
as it were, incorporated in a document, a subject of ownership (jus
in rem), and ownership of the document is deemed to be investiture
with the obligation. The emission of the Obligations (papers) now
resembles the jactus missilium ; the bank, company, or government,
that issues the obligations, treats detention of the document as
presumptive evidence of ownership, and discharges its obligation
by paying whoever presents the paper for payment. In these
contracts the payee, promisee, or creditor, is only defined by
the class term ‘bearer’ or ‘holder,’ i.e. is an incerta persona,
individually unknown to the debtor before the moment of presen-
tation.
One act of assent may suffice as the antecedent to many acts of
prehension ; for instance, in the acquisition (perceptio) of fruits by
190 . DE REBUS SINGULIS. [u. $$ 65-79.
a lessee (colonus) or usufructuary. Here the delivery (apprehensio)
occurs from time to time; the will or intention of the onginal
proprietor was manifested once for all when he created the usu-
fruct or lease. If the fructus are res nec-mancipi, perception
gives the lessee dominion: if they are res mancipi, perception
gives the lessee bona fide possession, which usucapio will ripen
into dominion.
Mere severance (separatio) of fruits (fructus) from the soil or
parent substance, without either constructive delivery (traditio) or
apprehension (perceptio), gives to the bona fide possessor, according
to Savigny, Besitz, 22 a, bona fide possession, which will be trans-
formed into property by usucapion: according to Vangerow,
§ 826, it gives him immediate and plenary property. Cf. Inst.
Just. 2, 1, 85.
If the true owner recovers the land or cattle by vindicatio, the
judex will compel the bona fide possessor to restore the unconsumed
fruits (fructus extantes) but not to make compensation for the con-
sumed fruits (fructus consumpti). The mala fide possessor, on the
contrary, acquires no property in the consumed fruits, but is com-
pelled either by the vindicatio by which the principal thing is
recovered or by a separate personal action (condictio) to restore
their value; he is compelled to restore the fructus extantes either
by the principal vindicatio or by a separate vindicatio. He can be
sued for the value of the fruits he has neglected to gather (fructus
neglecti) only in the principal vindicatio: their non-existence pre-
vents his being sued for them in a. separate vindicatio; and the
fact that he is not enriched by them prevents his being sued for
them in a separate condictio, Savigny, System, $ 267. Cf. §§ 260-
289 comm.
In one case the operation, even of contract and delivery combined,
is limited by the Twelve Tables, namely, in Sale. Here it is
provided that tradition shall not operate a transmutation of
property without & further condition — payment of the purchase
money, unless the sale is intended to -be a sale on credit, Inst.
2, 1, 41.
Tradition in Roman law was never fictitious; it was always an
actual delivery of a power of physical or corporeal control. In
English law, indeed, conveyance by a deed under the Statute of
Uses is said to transfer possession; but this is impossible: the
physical fact of possession can no more be produced by writing on a
0. § 65-79.] ADQUISITIONES DOMINII NATURALES. 191
parchment, than ignition, or explosion, or chemical decomposition
can be produced by writing on a parchment, or by any other than
its appropriate antecedent. The possession conveyed by assurance
under the Statute of Uses is merely a fictitious possession ; and
instead of saying that the deed passes possession, it would be nearer
the truth to say that, in respect of a conveyance under the Statute
of Uses, all those parts of the law are deemed to be expunged
which make the rights and duties of the alienee dependent on
possession. By this statute property in land, which before could
only be transferred by tradition (livery of seisin), became transfer-
able by a mere translative contract (bargain and sale).
Although we have not yet arrived at the subject of Obligation,
we may here by way of anticipation observe that in dispositions
creating a jus in personam Traditio plays a no less important part
than in dispositions creating a jus in rem, as we shall see when we
have to deal with contracts Real and innominate. In these contracts
Traditio, superseding Stipulation and other symbolic Forms, is the
element which differentiates a pactum nudum from a pactum ves-
titum, i.e. which makes a convention enforcible by the publie
tribunals. For the present it may suffice to quote the words of
Gaius as given in the Digest: In traditionibus rerum quodcunque
pactum sit id valere manifestissimum est, D. 2, 14, 48. ‘The
conventions that accompany a delivery of possession are certainly
valid.’
For a further examination of the nature of Possession, see the
theory of the possessory interdicts, Book 4.
§ 66-69. Occupation gives property in a thing which previously
has no proprietor. Quod enim ante nullius est, id naturali ratione
occupanti conceditur, Inst. 2, 1, 12. If a thing had already an
owner, it 1s only after dereliction by him that it can be appropriated
by occupation. Derelietion, or renunciation of property, requires
both the intention to abandon it and an external action. Thus the
casting overboard of articles in a tempest to lighten a ship is not
dereliction, as there is no intention of abandoning the property in
the event of salvage, Inst. 2, 1, 48. Nor does the mere intention
of abandonment constitute dereliction of property without a throw-
ing away or removal or some other external act; and herein dere-
lietion of property differs from dereliction of possession, which does
not require this second element. Differentia inter dominium et
possessionem haec est quod dominium nihilo minus ejus manet qui
192 DE REBUS SINGULIS. [rm §§ 65-79.
dominus esse non vult, possessio autem recedit ut quisque constituit
nolle possidere, Dig. 41, 2, 17. ‘There is this difference between
dominion and possession, that dominion continues after the will to
own has ceased, whereas possession ceases with the cessation of the
will to possess."
$ 68. Among wild animals (ferae naturae) a distinction is to be
drawn. In those of them that are half tamed (mansuefactae),
among which are mentioned deer, peacocks, pigeons, bees, property
is not limited by detention, as in other wild animals, but by animus
revertendi. A migrating swarm (examen) of bees, accordingly,
would only continue to belong to the owner of the hive as long as
it continues in his sight and is easy to recapture, as it has no
intention of returning. In tame animals, e.g. dogs or geese, the
rights of the owner are not extinguished by their straying without
an intention to return. Inst. 2, 1, 12-16.
§ 70-78. The intimate conjunction of two things, so that they
are no longer separable and restorable to their former condition,
produces a transmutation of property. A separable junction (com-
mixtio), as when two flocks of sheep are intermingled, or when a
stone is set in a ring, or when two metals are soldered together
(plumbatura) or are fused but may be chemically separated, pro-
duces no change of property. In one case, however, namely, when
material has been used in building a house or cultivating a vine-
yard, although the property of the owner continues, the Twelve
Tables deprive him of the right to demand its separation by real
action (vindicatio), and only allow him to bring the action de tigno
juncto aedibus vel vineae and recover double the value.
An inseparable union sometimes produces co-ownership in the
whole (condominium or communio), sometimes the exclusive owner-
ship of one of the parties (accessio).
When two things belonging to different owners are mixed
but neither produce a new species (confusio) nor the relation of
principal and accessory, e.g. when two similar wines or metals are
mixed; or when a new species is produced with the consent of both
owners, as when mead is produced by mixing honey and wine,
electrum by mixing gold and silver; then each owner loses his
separate ownership of a part, and becomes joint owner of the
whole. Inst. 2, 1, 27.
When a new species is produced by one owner without the con-
sent of the other, then the exclusive ownership is vested in the
11. §§65-79.] ADQUISITIONES DOMINII NATURALES. 193
producer, and the other can only obtain redress for the expro-
priation or loss of his ownership.
Farther, when the mixture establishes the relation of principal
and accessory, that is, when one thing loses its independent ex-
istence and becomes a part of the other (accessio), then the property
in the whole is vested in the proprietor of the dominant part ;
e.g. the property in the ship follows the property in the keel,
proprietas totius navis carinae causam sequitur, Dig. 6, 1, 61.
It will sometimes be a question which part is to be regarded as
principal and which as accessory, and the solution does not always
depend on their comparative value. Sometimes the relation of sub-
stance and accident prevails, for instance, in a tapestry the property
in the embroidery follows the property in the wool. Sometimes the
comparative value decides ; for instance, the property in the canvas
follows the property in the painting: and this seems more rational,
though Gaius appears to think that a picture ought to be governed
by the analogy of a manuscript, where the property in the writing
follows the property in the paper. Inst. 2, 1, 34.
$ 78. The remedy of the ex-proprietor of the accessory is an
in factum actio (4 § 46), Dig. 6, 1, 28, 5. Ulpian, Dig. 6, 1, 5,3,
speaks of a real action (utilis in rem. actio), which, as a real action
implies that the plaintiff is proprietor, seems to mean a Fictitious
action, 4 § 84, 1. e. one whose formula feigns that the property was
never devested by Accession. This may be what Gaius means by
utilis actio.
§ 79. Specification or labour is a title which cannot without
violence be brought under either Occupatio or Accessio. Here
one person contributes only his labour, whereby he transforms
the material or materials belonging to another into a new product
(nova species). "The Sabinians held that the product belonged (by
Accessio?) to the owner of the matter, the Proculeians (by Oc-
cupatio ?) to the producer of the form. Justinian adopts an inter-
mediste opinion, which Gaius mentions, Dig. 41, 1, 7, 7, cf. Inst.
2, 1, 25, that the product belongs to the producer, provided that it
cannot be reduced to the original substance, in which case it be-
longs to the owner of that substance; e.g. a vessel belongs to the
owner of the gold or silver out of which it was made: and provided
further that the change is a genuine fabrication or manufacture;
for instance, the mere thrashing out of corn is not sufficient to
change the ownership, and therefore the corn belongs to the owner
0
194 DE REBUS SINGULIS. [1r. $$ 65-79.
of the sheaves: and the mere dying of wool operates no transfer
of ownership to the dyer, D. 41, 1, 26, 3.
In the subjoined synopsis of the various titles to dominion which
have been considered the proper position of Specification is open to
controversy.
Acquisition is either Derivative (implying Succession) or
Original. |
Derivative acquisition depends on (1) the will of the previous
owner (alienatio, testatio) (2) the disposition of a judex
(adjudication, execution), or (3) the disposition of the legis-
lator (intestate succession, forfeiture).
Original acquisition is either independent of Possession or
depends on Possession.
Original aequisition independent of Possession is either the
effect of Separation or of Conjunction.
Separation is a title to property in the case of Separatio ©
fructuum, which confers property in the fruits on the
bona fide possessor, emphyteuta, and proprietor.
Conjunction is either the conjunction of equal with equal
or the conjunction of accessory with principal.
The conjunction of equal with equal is seen in Con-
fusio, which produces communio or co-proprietor-
ship, and Specificatio, which produces either com-
munio or exclusive ownership.
The conjunction of accessory with principal is either
of immovable with immovable, instanced in Al-
luvio :
or of movable with immovable, instanced in Satio,
Plantatio, Inaedificatio :
or of movable with movable, instanced in Scriptura,
Pictura.
Original acquisition dependent on Possession is either fur-
ther dependent on Time or is not dependent on Time.
Original acquisition dependent on Possession and further
dependent on Time is seen in Usucapio and Prae-
scriptio.
n. $$ 80-85. | PUPILLORUM ALIENATIO. 195
Original acquisition dependent on Possession but inde-
pendent of Time is seen in Occupatio, including Captio
ferarum, Captio hostilis, Inventio derelicti, Inventio
thesauri.
§§ 62-64. It is conjectured that by some accidental displacement
these three paragraphs have been transposed, and that in their
proper order they should follow § 61. There seems no good reason
why they should be interposed between the titles of civil law and
the titles of natural law.
The lex Julia, relating only to Italian soil, permitted the
husband to aliene the dotal land, with the consent of the wife, but
prohibited its hypothecation, even with her consent. Justinian
extended the prohibition to provineial soil, and to alienation with
the wife's consent, Inst. 2, 8, pr.
Javolenus held that the power of sale of a pledge was acci-
dentale negotii, and required a special agreement, D. 47, 2, 73.
Ulpian says that power of sale is essentiale negotii, and that a
contrary agreement is inoperative, except that it imposes a necessity
of three denunciations, D. 18, 7, 4.
[&. V. DE PVPILLIS AN ALIQVID
A SE ALIENARE POSSVNT. |
$80. Nunc admonendi sumus
neque feminam neque pupillum sine
tutoris auctoritate rem mancipti
alienare posse; nec mancipü uero
feminam quidem posse, pupillum
non posse.
$81. Ideoque st quando mulier
mutuam pecuniam alicui sine tuto-
ris anctoritate dederit, quia facit
eam accipientis, cum scilicet pecunia
res nec mancipii sit, contrahit obli-
gationem.
$82. At si pupillus idem fecerit,
!quia non fücit accipientis 8 ;
nullam | contrahit obligationem ;
unde pupillus uindicare quidem
nummos suos potest, sicubi extent,
id est eos petere suos ex iure Quiri-
tium esse; mulier uero minime hoc
modo repetere potest, sed ita : dari
ubi oportere. unde de pupillo
quidem quaeritur, an, si nummi,
quos mutuos dedit, ab eo qui acce-
WHETHER WARDS CAN
ALIENE.
§ 80. We must next observe,
that neither a woman nor a ward
can aliene a mancipable thing with-
out their guardian’s authority: a
ward cannot aliene a non-mancip-
able thing without the guardian’s
authority, & woman can.
$81. Thus & woman lending
money without the guardian's au-
thority passes the property therein
to the borrower, money being a
non-mancipable thing, and imposes
& contractual obligation.
$ 82. But a ward lending money
without his guardian’s authority
does not pass the property, and
impose a contractual obligation, and
therefore he can recover buck the
money, if it exists, by real action,
that is, by claiming it as quiritary
proprietor; whereas a woman can
only bring an action of debt.
Whether & ward can maintain an
action in case the money has been
o 2
196
pit, consumpti | sunt, aliqua actione
eos persequi possit, quoniam obliga-
tionem etiam sine tutoris auctori-
tate adquirere sib: potest.
$ 83. At ex contrario | omnes res
tam mancipit quam nec mancipii
mulieribus et pupillis sine tutoris
auctoritate solui possunt, quoniam
meliorem condicionem suam facere
eis etiam sine tutoris auctoritate
concessum est.
$ 84. Itaque si debitor pecuniam
pupillo soluat, facit quidem pecu-
niam pupilli, sed ipse non liberatur,
quia nullam obligationem pupillus
sine tutoris auctoritate dissoluere
potest, quia nullius rei alienatio ei
sine tutoris auctoritate concessa
est; sed tamen si ex ea pecunia
locupletior factus sit et adhuc petat,
per exceptionem doli mali summo-
ueri potest.
$ 85. Mulieri uero etiam sine
tutoris auctoritate recte solui po-
test; nam qui soluit, liberatur obli-
gatione, quia res nec mancip?ii, ut
proxime diximus, a se dimittere
mulieres etiam sine tutoris auctori-
tate possunt. quamquam hoc ita
est si accipiat pecuniam; at si non
accipiat, sed habere se dicat et per
acceptilationem uelit debitorem sine
tutoris auctoritate liberare, non
potest.
§ 80, cf. 1, §§ 189-193.
DE REBUS SINGULIS.
[1r. $$ 80-85.
consumed by the borrower, is a
subject of controversy, because a
ward can acquire a claim against a
person without the sanction of his
guardian.
§ 83. On the contrary, both man-
cipable and non-mancipable things
can be conveyed to women and
wards without their guardian’s au-
thority, because they do not require
his authority to better their posi-
tion.
§ 84. Accordingly, a debtor who
pays money to a ward passes the
property therein to the ward, but
is not discharged of his obligation,
because a ward cannot release from
any liability without his guardian’s
authority, as without such authority
he cannot aliene any right : if, how-
ever, he profits by the money, and
yet demands further payment, he
may be barred by plea of fraud.
§ 85. A woman may be lawfully
paid without her guardian’s author-
ity, and the payer is discharged of
liability, because, as we lately men-
tioned, a woman does not need her
guardian’s authority for the alien-
ation of a non-mancipable right,
provided always that she receives
actual payment: for if she is not
actually paid, she cannot feign re-
ceipt and release her debtor by fic-
titious acknowledgment (3 § 169)
without her guardian’s authority.
§ 82. For mutuum, see 8 § 90. If the money delivered by a ward
could be traced it was recoverable by real action (vindicatio): if it
had been consumed in bona fides a personal action, condictio certi,
would lie to recover an equivalent sum: if it had been consumed in
mala fides a personal action, ad exhibendum, would lie to recover
an equivalent sum and damages, Inst. 2, 8, 2, cf. 1, 142, and
comm.
$ 85. The pupilage of women after attaining the age of twelve,
ie. the age of puberty, had become obsolete before the time of
Justinian, and with it their incapacities of alienation.
n.$$86-96.] INSTRUMENTS OF ACQUISITION.
197
PER QUAS PERSONAS NOBIS ADQUIRATUR.
§ 86. Adquiritur autem nobis non
solum per nosmet ipsos, sed etiam
per eos quos in potestate manu
mancipioue habemus ; item per eos
seruos in quibus usumfructum habe-
mus; item per homines liberos et
seruos alienos quos bona fide posei-
demus. de quibus singulis diligen-
ter dispiciamus.
$ 87. Igitur (quod) liberi nostri
quos in potestate habemus, item
quod serui nostri mancipio accipiunt
nel ex traditione nanciscuntur, siue
quid stipulentur, uel ex aliqualibet
causa adquirunt, id nobis adquiri-
tur; ipse enim qui in potestate
nostra est, nihil suum habere potest.
et ideo si heres institutus sit, nisi
nostro iussu hereditatem adire non
potest; et si iubentibus nobis
adierit, hereditas nobis adquiritur
proinde afque -si nos ipsi heredes
instituti essemus ; et conuenienter
scilicet legatum per eos nobis ad-
quiritur.
$ 88. Dum tamen sciamus, si
alterius in bonis sit seruus, alterius
ex iure Quiritium, ex omnibus
causis ei soli per eum adquir?, cuius
in bonis est.
$ 89. Non solum autem proprie-
tas per eos quos in potestate habe-
mus adquiritur nobis, sed etiam
possessio ; cuius enim rei possessio-
nem adepti fuerint, id nos possidere
uidemur ; unde etiam per eos usu-
capio procedit.
$90. Per eas uero personas quas
in manu mancipioue habemus, pro-
prietas quidem adquiritur nobis ex
omnibus causis sicut per eos qui in
potestate nostra sunt; an autem
possessio adquiratur, quaeri solet,
quis ipsas non possidemus.
$91. De his autem seruis in qui-
bus tantum usumfructum habemus,
$ 86. We may acquire property
not only by our own acts but also
by the acts of persons in our power,
hand, or mancipation; further, by
slaves in whom we have a usufruct ;
further, by freemen or another's
slave of whom we are innocent
possessors : and let us now examine
these cases in detail.
$87. The rights of property
which children under power or
slaves acquire by mancipation or
tradition, the rights to a service
they acquire by stipulation, and all
rights they acquire by any other
title, are acquired for their supe-
rior; for an inferior is incapable
of holding property, and if insti-
tuted heir he must have the com-
mand of his superior to be capable
of accepting the inheritance, and if
he has the command of the superior
and accepts the inheritance, it is
acquired for the superior just as if
he himself had been instituted heir:
and the same occurs in the case of
&legacy.
$ 88. When one man is bonitary
proprietor of a slave and another
quiritary proprietor, whatever the
mode of acquisition, it enures exclu-
sively to the bonitary proprietor.
$89. Not only property is ac-
quired for the superior but also
possession, for the detention of the
inferior is deemed to be the posses-
sion of the superior, and thus the
former is to the latter an instru-
ment of usucapion.
$ 90. Persons in the hand or
mancipation of a superior acquire
dominion for him by all modes of
acquisition just as persons in his
power; whether they acquire pos-
session for him, is a controversy, not
being themselves in his possession.
§ 91. Respecting slaves in whom
& person has only a usufruct, the
198
ita placuit, ut quidquid ex re nostra
uel ex operis suis adquirant, id
nobis adquiratur ; quod uero extra
eas causas, id ad dominum proprie-
tatis pertineat. itaque si iste seruus
heres institutus sit legatumue quod
ei datum fuerit, non mihi sed do-
nino proprietatis adquiritur.
$ 92. Idem placet de eo qui &
nobis bona fide possidetur, siue
liber sit siue alienus seruus. quod
enim placuit de usufructuario, idem
probatur etiam de bonae fidel pos-
sessore. itaque quod extra duas
istas causas adquiritur, id uel ad
ipsum pertinet, si liber est, uel ad
dominum, si seruus est.
$ 93. Sed bonae fidei possessor
cum usuceperit seruum, quia eo
modo dominus fit, ex omni causa
per eum sibi adquirere potest. usu-
fructuarius uero usucapere non
potest: primum quia non possidet,
sed habet ius utendi [et] fruendi;
deinde quia scit alienum seruum
esse.
$ 94. De illo quaeritur, an per
eum seruus in quo usumfructum
habemus, possidere aliquam rem et
usucapere possimus, quia ipsum non
possidemus. per eum uero quem
bona fide possidemus, sine dubio et
possidere et usucapere possumus.
loquimur autem in utriusque per-
sona secundum definitionem quam
proxime exposuimus, id est si quid
ex re nostra uel ex operis suis ad-
quirant [id nobis adquiritur ].
$ 95. Ex his apparet per liberos
homines quos neque iuri nostro
Bubiectos habemus neque bona
fide possidemus, item per alienos
seruos in quibus neque usumfrac-
tum habemus neque iustam posses-
DE REBUS SINGULIS.
[ui. $$ 86-96.
rule is, that what they acquire by
administering the property of the
usufructuary or by their own labour
is acquired for the usufructuary ;
but what they acquire by any other
means belongs to their proprietor
(the reversioner). Accordingly, if
such a slave is instituted heir or
made legatee, the succession or
legacy is acquired, not to the usu-
fructuary, but to the proprietor.
§ 92. The innocent possessor of
a freeman or a slave belonging to
another has the same rights as a
usufructuary ; what they acquire by
any other title than the two we
mentioned, belonging in the one
case to the freeman in the other to
the true proprietor.
§ 93. After a bona fide possessor
has acquired the ownership of a
slave by usucapion, all acquisitions
by the slave enure to his benefit.
A usufructuary cannot acquire a
slave by usucapion, for, in the first
place, he has no true possession,
but only a quasi possession of a
servitude; in the second place, he
is aware of the existence of another
proprietor.
§ 94. It is a question whether a
slave can be an instrument of pos-
session and usucapion to a usufruc-
tuary, not being himself in his pos-
session. A slave, undoubtedly, can
be the instrument of possession and
usucapion to a bona fide possessor.
Both cases are limited by the dis-
tinction recently drawn, that is, the
proposition is confined to the things
acquired by the slave in the admi-
nistration of & party's property or
by his own labour.
$ 95. It appears that freemen
not subject to my power nor in my
innocent possession, and my neigh-
bour's slave of whom I am neither
usufructuary nor just possessor,
cannot under any circumstances be
i. §§ 86-96.] INSTRUMENTS OF ACQUISITION.
sionem, nulla ex causa nobis ad-
quin posse. et hoc est quod uulgo
dicitur per extraneam personam
nobis adquiri non posse. tantum
de possessione quaeritur, an (per
liberam) personam nobis adquiratur.
$96. Insumma sciendum est his
qui in potestate manu mancipioue
sunt, nihil in iure cedi posse; cum
enm istarum personarum nihil
199
instruments of my acquisition, and
this is the import of the dictum
that a stranger cannot be an in-
strument in the acquisition of any-
thing ; only in respect of possession
there is a controversy as to whether
an agent can be instrumental in its
acquisition.
§ 96. Finally, it is to be observed
that persons under power, in hand,
or in bondage, cannot acquire by
surrender before a magistrate, for,
being incapable of ownership, they
are incompetent to bring a claim of
ownership before a tribunal.
suum esse possit, conueniens est
scilicet, ut nihil suum esse in iure
uindicare possint.
$87. Manus and mancipium had ceased to exist before the time
of Justinian, and patria potestas was much reduced. Originally,
the filiusfamilias was incapable of property: in the peculium, the
goods he was allowed to administer, he had no property nor even
possession, 4 § 148, but merely detention. The military profession
were the first to emerge from this position of inferiority, and in
respect of peculium castrense the filiusfamilias was deemed to have
the status of paterfamilias. By the introduction of peculium quasi
castrense this privilege was extended to certain civil functionaries
and liberal professions: and by inventing peculium adventitium
Constantine still further emancipated the filiusfamilias. Peculium
adventitium, as opposed to peculium profectitium, was what came
to the son from any other source than the estate and permission of
the father : in respect of peculium profectitium the old law con-
tinued in force; the paterfamilias remained absolute proprietor : but
in respect of peculium adventitium the right of the father was
reduced to a life estate or usufruct: in respect of the fee or re-
version in remainder after this life estate the filiusfamilias was
proprietor, Inst. 2, 9, 1, cf. 1, 55, comm. The reduction of patria
potestas, and the abolition of the dependent law of Agnation, may
be almost, regarded (so fundamental were these institutions in jus
civile) as the abrogation of the civil law, and the substitution in
its stead of what the Romans called jus gentium or the law of
nature.
$88. The power of aequinng by the acts of a slave and the
power of manumission are elements of potestas, which accompanies
Bonitary, not Quiritary, dominion, 1, § 54, 8 § 166.
200 DE REBUS SINGULIS. [rr. $$ 86-96.
§ 94. Dig. 41, 2, 1, 8. Inst. 2, 9, 4.
$95. All Dispositions or modes of conferring either rights
against one (jus in personam), or rights against the world (jus in
rem), are divisible, as we have before mentioned, into two parcels ;
an essential portion, some mental or internal act, the Intention of
the parties; and an evidentiary portion, the Execution of this in-
tention, its incorporation in some overt act. Can these elements
of title be contributed by different persons? Can the Intention
of disposing, that is, of acquiring or aliening, reside in one, and
can its Execution, its external manifestation, be delegated to a
representative ?
Originally, that is, under the ancient civil law, representation
was only admitted when the representative was in an inferior status
to the principal, was his slave, or subject to his potestas, manus, or
mancipium. This limitation was found to be inconvenient, when,
in the progress of Roman conquest, Roman citizens became pro-
prietors in remote parts of the world ; and Possession was allowed
to be acquirable by the instrumentality of libera persona, that 1s, of
a person who stood in no relation of inferiority to the acquirer. In
a civil solemnity, like mancipation, a man could not be represented
by an independent agent; but when, subsequently, the transfer of
possession became the universal mode of transferring dominion, it
followed that Property, as well as Possession, could be acquired by
the agency of libera persona. Inst. Just. 2, 8, 5.
The acquisition of Obligations or personal rights by brokerage of
an independent agent was less perfectly developed. Originally, the
process employed was a duplication of the relation of agency (man-
datum). A as principal (dominus) appointed B his agent (pro-
curator). B then contracted with a third party in his own name,
and, in order to transfer the benefit of his contract to A, he ceded to
him his right of action, that is to say, B, as principal, in his turn
made A his agent (procurator in rem suam), whereby A was able to
sue in the name of B, and obtain judgment in the name of A.
Finally, the praetor allowed the principal to sue immediately, with-
out this cession of actions, by bringing a utilis actio, i. e. a fictitious
action, or aetion which feigned that the cession had taken place, or
rather, that the principal had been the immediate contractor, not
represented by an agent. But this fiction was only required in
respect of contracts governed by principles of civil law, i.e. the
Formal contracts, of which at last the only instance was Stipulatio.
1.$86-96.] INSTRUMENTS OF ACQUISITION. 201
In Formless contracts, or contracts governed by jus gentium, the
agent was a mere conduit pipe; the principal acquired an immediate
nght or obligation, without Cession and without Fiction Dig. 41, 1,
53. ‘Rights obtained by civil titles can only be acquired by the
mediation of persons in our power; for instance, rights by stipu-
lation: rights obtained by natural titles, such as the right of
possession, are acquirable through any agent that we choose to
employ.” See 3 § 168, to which place this topic more properly
belongs, and for a different interpretation of this passage see Wind-
scheid, Pandekten, ii. § 78.
§96. We might have expected that, as inferiors can acquire
for their superiors by Mancipatio, 2 § 87, so they could also acquire
by In jure cessio, especially as the same form of words: Hunc ego
hominem ex jure Quiritium meum esse aio: was used in Manci-
patio, 1 § 119, and in Vindicatio, 4 $ 16. It seems, however, that
in Mancipatio the formula could be changed to: Hane rem ex
jure Quiritium Lucii Titii domini mei esse aio, 8 § 167; and that
3» similar modification was not admissible in the legis actio. It
follows that an inferior (filius, mancipium, or servus) could acquire
for his superior rural servitudes, but not urban or personal servi-
tudes, 2 § 29, 30; not, that is to say, as res singulae: for as parts
of a rerum universitas these and all other rights could be acquired
for & superior by an inferior by making aditio of an hereditas
With the sanction of the superior, 2 $ 188; and even as res singulae
these rights could be acquired for a superior by an inferior by title
of legatum ; that is, if they are conferred by a testator on the in-
fenor as legatarius, Vat. frag. 51.
As a Rerum universitas includes Obligations (res incorporalis),
active and passive, as well as Dominion (res corporalis), the con-
sideration of Obligation should, theoretically speaking, precede the
consideration of Rerum universitas; in an elementary exposition
like the present, however, no practical inconvenience is occasioned
by postponing the consideration of Obligations, the remaining
branch of Res singulae, while we gain by exhausting the subject
of jus in rem before proceeding to the examination of jus in
personam.
We may remember that Rerum universitas, as well as Servitudes
and Obligations, was included by the Romans under the term Res
incorporalis, 2 $ 14. "The whole division of righte, however, into
Res corporalis and Res incorporalis is unsatisfactory ; for, as we
202
DE RERUM UNIVERSITATIBUS.
[nr. $$ 97-108.
have already noticed, it was only from confusion of thought that
Dominion was held to be Res corporalis; and all Rights are, really,
Res incorporales.
QUIBUS MODIS PER UNIVERSITATEM RES ADQUIRANTUR.
$ 97. Hactenus tantisper admo-
nuisse sufficit quemadmodum sin-
gulae res nobis adquirantur. nam
legatorum ius, quo et ipso singulas
res adquirimus, opportunius alo
loco referemus. uideamus itaque
nunc quibus modis per uniuersita-
tem res nobis adquirantur.
$ 98. Si cui heredes facti sumus,
siue cuius bonorum possessionem
petierimus, siue cuius bona emeri- :
mus, siue quem adoptauerimus, siue
quam in manum ut uxorem recep-
erimus, eius res ad nos transeunt.
$ 99. Ac prius de hereditatibus
dispiciamus, quarum duplex condicio
est: nam uel ex testamento uel ab
intestato ad nos pertinent.
$100. Et prius est ut de his dis-
piciamus quae nobis ex testamento
obueniunt.
$ 97. So much at present re-
specting the modes of acquiring
SINGLE rights; for bequest, an-
other title whereby single rights are
acquired, will find a more suitable
place in a later portion of our
treatise. We proceed to the titles
whereby an AGGREGATE of rights is
acquired.
§ 98. If we become the successors,
civil or praetorian, of a person de-
ceased, or purchase the estate of an
insolvent, or adopt a person sul
juris, or receive a wife into our
hand, the whole estate of those
persons is transferred to us in an
aggregate mass.
§ 99. Let us begin with inherit-
ances, whose mode of devolution is
twofold, according as a person dies
testate or intestate.
§ 100. And we first treat of ac-
quisition by will
DE TESTAMENTIS ORDINANDIS.
$ 101. Testamentorum autem
genera initio duo fuerunt: nam aut
calatis comitiis testamentum facie-
bant, quae comitia bis in anno tes-
tamentis faciendis destinata erant,
aut in procinctu, id est cum belli
causa arma sumebant; procinctus
est, enim expeditus et armatus exer-
citus. alterum itaque in pace et in
otio faciebant, alterum in proelium
exituri.
$ 102. Accessit deinde tertium
$101. Wills were originally of
two kinds, being made either at
the comitia calata, which were held
twice a year for making wills, or in
martial array, that is to say, in the
field before the enemy, martial array
denoting an army clad and armed
for battle. One kind, then, was
used in time of peace, the other in
time of war.
§ 102. More recently, a third
1.5$97-108.] DE TESTAMENTIS ORDINANDIS.
genus testamenti, quod per aes et
libram agitur. qui neque calatis
comitiis neque in procinctu testa-
mentum fecerat, is si subita morte
urguebatur, amico familiam suam,
id est patrimonium suum, mancipio
dabat, eumque rogabat, quid cuique
post mortem suam dar? uellet. quod
testamentum dicitur per aes et
libram, scilicet quia per mancipati-
onem peragitur.
$103, Sed illa quidem duo ge-
nera testamentorum in desuetudi-
nemabierunt; hoc uero solum quod
per aes et libram fit, in usu re-
tentum est. sane nunc aliter ordi-
natur quam olim solebat. namque
olim familiae emptor, id est qui a
testatore familiam accipiebat man-
cipio heredis locum optinebat, et
ob id ei mandabat testator, quid
cuique post mortem suam dari
uellet ; nunc uero alius heres tes-
tamento instituitur, a quo etiam
legata relinquuntur, alius dicis
gratia propter ueteris iuris imita-
tionem familiae emptor adhibetur.
$104. Eaque res ita agitur: qui
facit (testamentum), adhibitis, sicut
in ceteris mancipationibus, V tes-
tibus ciuibus Romanis puberibus
et libripende, postquam tabulas
testamenti scripserit, mancipat ali-
cui dicis gratia familiam suam ; in
qua re his uerbis familiae emptor
utitur FAMILIA PECVNIAQVE TVA
ENDO MANDATELAM CVSTODELAM-
QVE MEAM, QVO TV IVRE TESTA-
MENTVM FACERE POSSIS SECVNDVM
LEGEM PYBLICAM, HOC AEBE, et ut
quidam adiciunt AENAKQVE LIBRA,
ESTO MIHI EMPTA; deinde aere
percutit libram, idque aes dat tes-
tatori uelut pretiiloco; deinde tes-
tator tabulas testamenti tenens ita
dicit HAEC ITA VT IN HIS TABVLIS
203
kind was introduced, effected by
bronze and balance. A man who
had not made his will, either in the
comitia calata or in martial array,
being in apprehension of approach-
ing death, used to convey his estate
by mancipation to a friend, whom
he requested to distribute it to cer-
tain persons in & certain manner
after his death. This mode of tes-
tamentary disposition is called the
will by bronze and balance, because
it involves the process of mancipa-
tion.
$ 103. The first two modes have
fallen into desuetude, and that by
bronze and balance, which alone sur-
vives, has undergone a transforma-
tion. In former times the vendee
of the estate, the alienee by manci-
pation from the testator, was the
successor, and received the tes-
tators instructions respecting the
disposition of his property after his
death. At the present day, the
person who is instituted successor,
and who is charged with the execu-
tion of the bequests, is different
from the person who, for form's
sake, and in imitation of the ancient
process, represents the purchaser.
$104. The proceedings are as
follows: The testator having sum-
moned, as is done in other manci-
pations, five witnesses, all Roman
citizens of the age of puberty, and
a holder of the balance, and having
already reduced his will to writing,
makes a fictitious mancipation of
his estate to a certain vendee,
who thereupon utters these words:
‘Thy family and thy money into
my charge, ward, and custody I
receive, and, in order to validate
thy wil conformably to Roman
law, with this ingot, and’ — as
some continue —' with this scale of
bronze, unto me be it purchased.’
Then with the ingot he strikes the
scale, and delivers the ingot to the
204
CERISQVE SCRIPTA SVNT, ITA DO
ITA LEGO ITA TESTOR ITAQVE VOS
QVIBITES TESTIMONIVM MIHI PER-
HIBETOTE; et hoc dicitur nuncu-
patio: nuncupare est enim palam
nominare, et sane quae testator
specialiter in tabulis testamenti
scripserit, ea uidetur generali ser-
mone nominare atque confirmare.
$ 105. In testibus autem non
debet is esse qui in potestate est
aut familiae emptoris aut ipsius
testatoris, quia propter ueteris iuris
imitationem totum hoc negotium
quod agitur testamenti ordinandi
gratia, creditur inter familiae emp-
torem agi et testatorem; quippe
olim, ut proxime diximus, 18 qui
familiam testatoris mancipio acci-
piebat, heredis loco erat; itaque
reprobatum est in ea re domesticum
testimonium.
§ 106. Unde et si is qui in potes-
tate patris est, familiae emptor ad-
hibitus sit, pater eius testis esse
non potest; ac ne is quidem qui zn
eadem potestate est, uelut frater
eius. sed si filius familias ex cas-
trensi peculio post missionem faciat
testamentum, nec pater eius recte
testis adhibetur nec is qui in
potestate patris est.
$ 107. De libripende eadem quae
et de testibus dicta esse intellege-
mus; nam et is testium numero
est.
§ 108. Is uero qui in potestate
heredis aut legatarii est, cuiusue
heres ipse aut legatarius in potes-
tate est, quique in eiusdem potestate
est, adeo testis et libripens adhi-
beri potest, ut ipse quoque heres
aut legatarius iure adhibeantur.
sed tamen quod ad heredem perti-
net quique in eius potestate est
DE RERUM UNIVERSITATIBUS.
[n. $$ 97-108.
testator, as by way of purchase-
money. Thereupon the testator,
holding the tablets of his will, says
as follows: ‘This estate, as in
these tablets and in this wax is
written, I so grant, so devise, so
dispose; and do you, Quirites, so
give me your attestation. These
words are called the nuncupation,
for nuncupation signifies public
declaration, and by these general
words the specific written disposi-
tions of the testator are published
and confirmed.
$105. For the part of witness,
it is a disqualification to be in the
power of the fictitious vendee or of
the testator, because, the old pro-
ceeding furnishing the model, the
whole testamentary process is Sup-
posed to be a transaction between
the vendee and the testator; and
in old times, as was just observed,
the vendee was the testamentary
successor; wherefore no person in
the power of the vendee was a com-
petent witness.
$106. Hence too, if the vendee
is a filiusfamilias, neither his father
nor any one in his father’s power,
his brother, for instance, is com-
petent to attest; and if a filius-
familias, after his discharge from
service, make a will of his military
peculium, neither his father nor any
one in his father’s power is qualified
to be a witness.
§ 107. The same rules apply to
the balance-holder, for the balance-
holder is a witness.
§ 108. Not only is a person who
is in the power of the heir or
legatee, or a person who has power
over the heir or legatee, or a person
in the same power as the heir or
legatee, capable of being witness or
balance-holder, but the heir or lega-
tee himself can act in this character.
However, it is advisable that the
1.$$97-108.] DE TESTAMENTIS ORDINANDIS. 205
cuiusue is in potestate erit, minime heir, and those in his power, and
hoc iure uti debemus. the person in whose power he is,
should not exercise their qualifica-
tion.
$101. A will is thus defined by Ulpian: Testamentum est
mentis nostrae justa contestatio, in id sollemniter facta, ut post
mortem nostram valeat, 20, 1. ‘A will is a duly attested de-
claration of intention, solemnly executed in order to operate after
death.’ So important is the institution of a heres to the validity
of a will in Roman law, that à Roman testament might be simply
defined the institution of a heres.
Testamentary disposition was an interference with the more
ancient law of succession by descent or intestate devolution, and
the diversion of property from the legal course of transmission
seemed at first so great an innovation as to require legislative
sanction. Accordingly, the will executed in the Comitia Calata, or
convocation of the curiae, was really a private law; and even the
will in procinctu, when we remember the original identity at Rome
of the civil and military organization, may be regarded as a legis-
lative act of the people in military convocation.
$102. The mancipatory will, or will by bronze and scale, probably
began to supersede the older form as soon as the Twelve Tables had
given legal force to the nuncupative part of mancipation (Cum
nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto,
Festus. * In contract or conveyance by bronze and balance, the oral
declaration shall have legal force,’) and had expressly recognized
in every paterfamilias a power of testamentary disposition (Uti
legassit super [familia], pecunia, tutelave suae rei, ita jus esto,
Ulpian, 11, 14. ‘The directions of a testator respecting his family,
property, and the guardianship of his children, shall be carried into
effect)"
$108. The introduction of writing marks an era in mancipatory
wills. Originally, the testator gave oral instructions to the familiae
emptor in the presence of the witnesses respecting the distribution
of his estate. These oral instructions, forming the lex mancipii, or
conditions of the conveyance, were called the nuncupatio. After-
wards, for the sake of secrecy, the testator committed his inten-
tions to writing, and the nuncupation became a mere form of publi-
eation, or general ratification of the directions contained in the
tablets which the testator held in his hand, It was probably in
206 DE RERUM UNIVERSITATIBUS. [m. §§ 97-108.
part, as Theophilus says, with the same view of concealing the
testator’s intentions, that the familiae emptor was separated from
the heres, but in part also to enable the testator to institute as heres
8 person who from infancy or any other disability was incapable of
co-operating in a mancipation.
§ 105. It is an intelligible rule, that a person interested in the
validity of a will should be incompetent as a witness; and, when
the familiae emptor was the heir, it was reasonable to disqualify for
attestation any one united in interest to the familiae emptor. But
when the mancipation was purely fictitious (imaginaria mancipatio,
Ulpian, 20, 3; imaginaria venditio, Inst. 2, 10, 1), and the imagi-
nary vendee distinct from the heir, the continuance of this disqualifi-
cation shows the tendency of the Romans to venerate rules after the
principles on which they were founded had ceased to operate. In
the meantime the heir, who was really interested, was competent to
be a witness. Cicero, for instance, mentions that he and Clodius
were both witnesses to a will in which they were appointed heirs,
Pro Milone, 18, 48. Thus the dispositions of the legislator were
deranged and stultified: totum jus conturbatum erat, Inst. 2,
10, 10: the transference of interest from the familiae emptor to
the heres not being accompanied by a corresponding transference
of testimonial disqualifieation from the relatives of the familiae
emptor to the relatives of the heres. Justinian converted the
advice of Gaius into a rule of law, and disabled the heir
and persons united to him by the bond of potestas from giving
attestation, Inst. 2, 10, 10. Legatees retained their competency
to attest.
$ 106. This statement of Gaius respecting a will of castrense
peculium, is inadvertently transferred to Justinian's Institutes, 2,
10, 9, but is inconsistent with a dictum of Ulpian’s in the Digest :
Per contrarium quaeri potest, an pater ejus qui de castrensi peculio
potest testari, adhiberi ab eo ad testamentum testis possit? Et
Marcellus libro decimo Digestorum scribit posse: et frater ergo
poterit, D. 28, 1, 20, 2. We have here, then, a case of Antinomy
(contradictory laws) in Justinian’s legislation. Vangerow, § 44-4,
solves the antinomy by supposing that Ulpian speaks of a will
made during service; the Institutes, like Gaius, of a will made post
missionem.
By English law, 1 Vic. c. 26, any devise or legacy to an attest-
ing witness is void, and the evidence of the witness admissible,
1.$$97-108.] DE TESTAMENTIS ORDINANDIS. 207
and no person is incompetent to attest on account of being ap-
pointed executor.
In another form of will deriving its validity from the authority
of the praetor, the form of mancipation was dropped, and the only
authentication required was the apposition of the seals of seven
attesting witnesses. Under such a will, however, the devisee could
not take the legal estate or hereditas, but only the equitable estate
or bonorum possessio, §§ 119, 120, 148.
Before the time of Justinian, a form of will had been established
deriving its validity from three orders of legislation (jus triperti-
tum), the civil law, the praetorian edict, and the imperial constitu-
tions. In accordance with the last, the witnesses were required to
sign or subscribe their names; in accordance with the praetorian
edict they were required to attach their seals (signacula); and in
accordance with the civil law, their number was required to be seven
(a number obtained by adding the libripens and familiae emptor to
the five witnesses of the mancipation), and the whole formality of
attestation and publication was required to be continuous, that is, to
proceed from beginning to end without interruption or interposition
of any other business. Inst. 2, 10, 3.
Another form of will is mentioned by Justinian as perfectly valid
at civil law, the Nuncupative will, consisting solely of an oral
declaration in the presence of seven witnesses, Inst. 2, 10, 14. A
modification of this produced one of the most solemn forms of testa-
ment. The nuncupation was made before the Praeses provinciae,
or magistrates of the municipal senate (curia); and thereupon a
memorandum or protocol (insinuatio) of the testator's dispositions
was made at length in the public records (acta or gesta) of the
proceedings of the governor or senate. This was called a publie
testament. Savigny, Vermischte schriften, 27.
By English law, 1 Vict. c. 26, only two witnesses are required to
a will, whether of real or personal estate. The will must be in
writing, signed at the end by the testator, or by some other person
in his presence and by his direction; and such signature must be
made or acknowledged by the testator in the presence of the two
witnesses, who must be present at the same time, and who must
attest and subscribe the will in the presence of the testator.
208
DE RERUM UNIVERSITATIBUS. [1.§§ 109-114.
DE TESTAMENTIS MILITUM.
§ 109. Sed haec diligens obser-
uatio in ordinandis testamentis mi-
ltibus propter nimiam inperitiam
eonstitutionibus principum remissa
est. nam quamuis neque legitimum
numerum testium adhibuerint ne-
que uendiderint familiam neque
nuncupauerint testamentum, recte
nihilo minus testantur.
$ 110. Praeterea permissum est
lis et peregrinos et Latinos institu-
ere heredes uel zis legare; cum
alioquin peregrini quidem ratione
ciuili prohibeantur capere heredi-
tatem legataque, Latini uero per
legem Iuniam.
$ 111. Caelibes quoque qui lege
Iulia hereditatem legataque capere
uetantur; item orbi, id est qui
liberos non habent, quos lex Papia
plus quam dimidias partes heredi-
tatis legatorumque capere «etat, ex
militis testamento solidum captunt.
(48 uersus in C perierunt
| prohibentur hi— L-
(6 uersus in C legi nequeunt)
|——eius more faciant—|
XXX annorum——|
(8 uersus in C legt nequeunt)
res
(2 uersus in C legi nequeunt)
gun — | —
$ 109. But from these strict rules
in the execution of a will soldiers,
in consideration of their extreme
ignorance of law, have by imperial
constitutions a dispensation. For
neither the legal number of wit-
nesses, nor the ceremony of manci-
pation or of nuncupation, is neces-
sary to give force to their will.
§ 110. Moreover, they may make
aliens and Latini Juniani their heirs
or legatees, whereas under other
wills an alien is disqualified from
taking a succession or legacy by the
civil law, and Latini Juniani by the
lex Junia.
§ 111. Celibates also, whom the
lex Julia disqualifies for taking
successions or legacies, and child-
less persons whom the lex Papia
prohibits from taking more than
half a succession or legacy (see
§ 286), are exempt from these in-
capacities under the will of a
soldier.
§ 109. The military will, which superseded the old testament in
procinctu, could only be executed during actual service, and in this
period only when the soldier was in camp, not when he was at
home or on leave of absence. A will made after the soldier’s dis-
charge from service or during his absence from camp was governed
by the same rules as the will of a civilian (paganus). A military
will, executed without the ordinary formalities, only remained valid
during a year after discharge from service. Inst. 2, 11, 3.
TESTAMENTIFACTIO.
§ 112. —ex auctoritate diui Ha- $112. Butasenatusconsult under
driani senatusconsultum factum est, the late emperor Hadrian, as already
n. § 109-114. ]
quo permissum est | feminis
etiam sine coemptione te|stamen-
tum facere, 81 modo non minores
essent annorum XII, scilicet. ut
quae tutela liberatae non essent,
iutore auctore testari deberent.
$113. Videntur ergo melioris
condicionis esse feminae quam mas-
culi; nam masculus minor annorum
Xii testamentum facere non potest,
etiamsi tutore auctore testamentum
facere uelit, femina uero post Xii
annum testamenti faciendi tus nan-
ciscitur.
$114. Igitur si quaeramus an
ualeat testamentum, inprimis ad-
uertere debemus an is qui id fecerit,
habuerit testamenti factionem ; de-
inde, si habuerit, requiremus an
secundum iuris ciuilis regulam tes-
tatus sit, exceptis militibus, quibus
propter nimiam ?nperitiam, ut dixi-
mus, quomodo uelint uel quomodo
posrnt, permittitur testamentum
facere.
DE TESTAMENTIS MILITUM.
209
mentioned (1$ 115 a), made coemp-
tion unnecessary, and permitted
women to make a will on attaining
12 years of age, only requiring their
guardian's authority if they were
gtill in a state of pupilage.
$113. Women, then, are in &
better legal position than males, for
a male under 14 years of age can-
not make a will even with his
guardian’s sanction, but a female
acquires the capacity of devising as
soon as she is 12 years old.
§ 114. Accordingly, to determine
the validity of a will, we must first
ascertain whether the testator had
testamentary capacity; next, if he
had, whether he conformed to the
requisitions of the civil law in its
execution, with this reservation,
that soldiers, on account of their
extreme ignorance of law, as was
mentioned, are allowed to make
their wills in any way they like and
in any way they can.
§ 112. On the lost leaf of the Veronese codex Gaius proceeded to
mention the classes who were incompetent to make a will. Among
these would be the filiusfamilias, who could only dispose of his
peculium castrense and quasi castrense,
10; Epit. 2, 2, 1.
Cf. Inst. 2, 12 ; Ulp. 20,
Testamentifactio is a term applied, (A) to the Testator, Testa-
mentifactio activa; (B) to the object of his bounty, Testamenti-
factio passiva ; (C) to the witnesses.
these applications.
Let us consider it in each of
(A) Testamentifactio activa sometimes comprehends all the
conditions (physical included) of testamentary capacity, and then it
excludes children and lunatics: but the proper meaning of testa-
mentifactio is the qualification by Status for mancipatio, and conse-
quently for the mancipatory will: that is to say, it is equivalent
to Commercium, and therefore is ascribed to all cives, all Latini,
and all aliens who have received a grant of commercium.
To make a will, however, a testator must have not only personal
capacity, but he must also have property to leave. This latter
condition is necessarily wanting to the Filiusfamilias and to the
P
210 DE RERUM UNIVERSITATIBUS. [m.$$109-114.
Latinus Junianus: in their case, therefore, Testamentifactio does
not mean capacity of being testator, but of playing some other
part in the mancipatory will; i.e. of being devisee, or legatee,
or witness.
The testator’s capacity is required at two periods: at the time of
making the will and at the time of the testator's death. The strict
civil Jaw also required the continuance of capacity during the in-
terval between these dates: but the praetor disregarded any inter-
vening incapacity (capitis diminutio), and, notwithstanding such an
event, gave the will efficacy by granting to the devisee, not the
civil hereditas which was beyond his power, but juxta-tabular pos-
eession (bonorum possessio juxta or secundum tabulas) 2 $ 147,
Ulpian 28, 6. Exigit praetor ut is cujus bonorum possessio datur
utroque tempore jus testamenti faciendi habuerit, et quum facit
testamentum et quum moritur . , . . Sed si quis utroque tem-
pore testamentifaetionem habuerit, medio tempore non habuerit,
bonorum possessio secundum tabulas peti poterit, D. 37, 11, 1, 8.
Two other cases of incapacitation were cured by the principle of
postliminy and the lex Cornelia testamentária : if a testator suffered
capitis diminutio maxima by falling into the hands of the enemy,
when he returned from captivity his will reacquired validity by the
operation of postliminy: if he never returned his will obtained
validity by the fiction that he died à moment before his capture,
Quatenus tamen diximus ab hostibus capti testamentum irritum
fieri, adjiciendum est postliminio reversi vires suas recipere jure
postliminii, aut si ibi decedat lege Cornelia confirman, D. 28, 3,
6, 12. In omnibus partibus juris is qui reversus non est ab
hostibus, quasi tunc decessisse videtur cum captus est, D. 49, 15, 18,
Ulpian, 28, 5, |
The physical conditions of testamentary incapacity (infancy,
Junacy) are only critical.at the date of making the will.
The praeterition of suus heres, another circumstance which as
well as testamentifactio affected the validity of a will, was at civil
law critical both at the time of making the will and at the time of
the testator's death and in the interval: but in later times this
defect of a will was healed by the praetor who granted juxta-tabular
possession if the defect only existed at the first and third period,
D. 28, 3, 12, so. that, practically the existence of a pretermitted
suus heres at the time of the testator’s death was alone important,
(B) The Honoratus or the recipient of the testator's bounty,
1. § 109-114.] TESTAMENTIFACTIO, 211
whether heres or legatarius, required testamentifactio passiva,
which like testamentifactio activa meant Commercium or capacity
of taking part in mancipatio. Accordingly both a filiusfamilias
and a Latinus could be heres or legatee (for the limitation, however,
of the capacity of Latinus Junianus by the lex Junia Norbana
see below). This capacity must exist at three periods (tria tem-
pora): the making of the will, the death of the testator, and the
acquisition of the succession by the heres (aditio). The interval
between the making of the will and the death of the testator was
immaterial, Inst. 2, 19, 4, D. 28, 5, 59, 4. The interval between
the death of the testator and the aditio of the heres was material,
because on the incapacitation of the first heres institutus the in-
heritance would be instantaneously delated (offered for acceptance)
to the heres substitutus or to the successor ab intestato,
The looking to the capacity of Honoratus at the date of making
the will as well as Iater, though apparently based on no motives of
testamentary policy, but only due to the mancipatory form of the
primitive will, which was ostensibly a mancipatio inter vivos,
le. a disposition taking effect in the lifetime of the mancipator,
was retained in Justinian’s legislation after wills had. lost their
Mancipatory form. — ,
In respect of Honoratus it is necessary to distinguish institutio
from acquisitio (aditio); and testamentifactio passiva, competence
for institution, from capacitas or jus capiundi, competence for
acquisition. Testamentifactio passiva was required at the date of
the making of the will ; and in ite absence a disposition was deemed
to be unwritten (pro non scripto habetur); and the property dis-
posed of went by Accretio to the other heredes scripti. Capacitas,
in ite distinctive sense, was only required at the date of acquisition ;
and in ite absence the unacquired property became caducous, and
devolved in part or in whole to certain persons or to the state,
38 determined by the laws of caducity.
Incapaces, or persons who from want of capacitas forfeited part
or the whole of the testator's bounty, comprehended :
(1) Latini Juniani, who were made incapable by the lex Junia
Norbana, 1 $ 23, 2 $ 110, 2 § 275. But see Ulpian, 17, 1.
(2) The unmarried (coelebs), married but childless (orbus),
widower or divorced with children (? pater solitarius), who were
made partially incapable by the lex Papia Poppaea :
(3) Husband or wife (vir et uxor), who by the same law could
PA
212 DE RERUM UNIVERSITATIBUS. (1. §§ 109-114.
only take one tenth of a heritage, and another tenth for every
living child by a former marriage: further, another tenth for a
common child that lived to the day of naming (nominum dies), or
two tenths for two such children, but not more. In addition to
their tenth, the husband or wife might have the usufruct, and, if
not childless, the property in a third, Ulpian, 15.
These disqualifications were not recognized in Justinian’s legis-
lation: so that at that period the distinction between capacitas and
testamentifactio passiva had lost much of its importance. We find,
however, under Justinian the penalty of forfeiture (ereptio, ablatio)
for Indignitas. Indigni were persons deemed on various grounds
unworthy of the testator’s bounty. The devolution of the pro-
perty intended for them followed different rules from those which
governed other cases of Incapacity. See § 151, and Vangerow,
429.
: (C) Testamentifactio was further applied to designate the quali-
fication of the witnesses to a will This was only required to
exist at one period, the date of the execution of the will. Savigny,
$ 898.
$ 118. By English law, the age at which a person was competent
to make a will was formerly the same as by Roman law, namely,
12 years for females, 14 years for males; but now, by 1 Vict. c. 26,
no one is competent to make a will before attaining 21 years
of age.
BONORUM POSSESSIO SECUNDUM TABULAS.
$ 115. Non tamen, ut iure ciuili $ 115. The civil law, however, is
valeat testamentum, sufficit ea ob-
seruatio quam supra exposuimus de
familiae uenditione et de testibus
et de nuncupationibus.
$ 116. (sed) ante omnia requi-
rendum est, an institutio heredis
sollemni more facta sit; nam aliter
facta institutione nihil proficit fami-
liam testatoris ita uenire testesque
ita adhibere et tta nuncupare tes-
tamentum, ut supra diximus,
$117. Sollemnis autem institutio
haec est TITIVS HERES ESTO; sed
et illa iam conprobata uidetur
TITIVM HEREDEM ESSE IVBEO; at
not satisfied by observing the requi-
sitions hereinbefore explained re-
specting mancipation, attestation,
and nuncupation.
§ 116. Above all things, we must
observe whether the institution of
an heir was in the sacramental
terms; for if the institution of an
heir was not in the traditional form,
it is unavailing that the mancipa-
tion, attestation, nuncupation, were
r.
$ 117. The solemn form of insti-
tution is this : ‘Be Titius my suc-
cessor. The following also seems
now to be recognized: ‘I order
m. § 115-122.] BONORUM POSSESSIO TESTATI.
illa non est conprobata TITIVM
HEREDEM ESSE VOLO; sed et illae
& plerisque inprobatae sunt TITIVM
HEREDEM INSTITVO, item HEREDEM
FACIO.
$118. Obseruandum praeterea
est, ut si mulier quae in tutela est,
faciat testamentum, tutore auctore
facere debeat ; alioquin inutiliter
iure ciuili testabitur.
$119. Praetor tamen si septem
signis testium signatum sit testa-
mentum, scriptis heredibus secun-
dum tabulas testamenti bonorum
(possessionem) pollicetur; (et) &
nemo sit, ad quem ab intestato iure
legitimo pertineat hereditas, uelut
frater eodem patre natus aut pa-
truus aut fratris filius, ita poterunt
&ripi heredes retinere heredita-
tem. nam idem iuris est et si alia
ex causa testamentum non ualeat,
uelut quod familia non uenierit aut
nuncupationis uerba testator locu-
tus non sit.
§ 120. Sed uideamus an etiamsi
frater aut patruus extent, potiores
&riptis heredibus habeantur. re-
aripto enim imperatoris Antonini
aignificatur eos qui secundum tabu-
las testamenti non iure factas bo-
norum possessionem petierint, posse
sduersus eos qui ab intestato uin-
dicant hereditatem, defendere se per
exceptionem doli mali.
$121. Quod sene quidem ad
masculorum testamenta pertinere
certum est; item ad feminarum
quae ideo non utiliter testatae sunt,
quia uerbi gratia familiam non uen-
diderint aut nuncupationis uerba
locutae non sint; an autem et
ad ea testamenta feminarum quae
sine tutoris auctoritate fecerint,
haee constitutio pertineat, uide-
bimus
§ 122. Loquimur autem de his
scilicet feminis quae non in legitima
parentum aut patronorum tutela
213
that Titius be my successor.’ ‘I
wish Titius to be my successor’ is
not admitted ; and most reject the
following: *I institute Titius my
successor, 'I make Titius my suc-
cessor.’
§ 118. It is also to be remem-
bered that a woman who has a
guardian must have her guardian’s
authority to devise, or her will is
invalid at civil law.
§ 119. The praetor, however, if
the will is attested by the seals of
seven witnesses, promises to put the
devisees in juxta-tabular possession,
and if there is no one to take
the legal inheritance by descent,
a brother by the same father, for
instance, a father’s brother, or a
brother's son, the devisees are se-
cure from eviction; for the same
rule obtains if the will 1s invalid
from any other cause, such as the
absence of mancipation or nuncu-
pation.
$ 120. But are not even a bro-
ther and paternal uncle postponed
to the devisees? for the rescript of
the emperor Marcus Aurelius An-
toninus (or A. Pius) permits the
devisee who has obtained juxta-
tabular possession under an informal
will to repel the claimants in intes-
tacy by the plea of fraud.
§ 121. This applies to the wills
of males and females which are in-
formal for such faults as want of
mancipation or nuncupation : whe-
ther also to wills of females who
devise without their guardian's
authority, is a question.
$122. We are not speaking of
females who are the statutory
wards of their parent or patron,
214
sunt, sed [de his] quae alterius
generis tutores habent, qui etiam
inuiti coguntur auctores fieri ; alio-
quin parentem et patronum sine
auctoritate eius facto testamento
non summoueri palam est.
DE RERUM UNIVERSITATIBUS. (rir. $$ 115-122.
but of those who are wards of the
other sort of guardian, whose
guardians are compellable to lend
their authorization; for a parent
or patron can certainly not be dis-
inherited by an unauthorized will.
$ 117. The necessity of using formal words in the institution of
an heir was abolished by a constitution of Constantine, Constantius,
and Constans, a.p. 889, Cod. 6, 23, 15.
As to the nomenclature employed in the following exposition of
Roman testamentary law, it must be observed that Heres corre-
sponds sometimes to the Heir, sometimes to the Devisee, sometimes
to the Executor, of English jurisprudence. In the language of
English jurisprudence, Heir denotes a successor to real estate, while
Executor denotes a successor to personal property. Again, Heir
denotes a successor to real estate by descent, Devisee denotes a
successor to real estate under a will. Accordingly, to avoid mis-
leading an English reader by false associations, in translating the
word Heres, Successor has generally been employed instead of Heir,
without, however, entirely: renouncing the use of the shorter word,
whieh is often convenient from its relation to the indispensable
terms disinherit and disinheritance.
Devisee has generally been employed, 1n preference to Executor,
as a translation of scriptus heres, but it must then be stripped of
any reference to the distinction between property in money and
property in land. The word Executor is not available as a transla-
tion of heres. The Executor of English law, unless also a legatee,
holds a merely onerous office; whereas the heres of Roman law was
always a beneficiary. The Roman heres, in fact, united the cha-
racters of the English executor and residuary legatee: and the lex
Falcidia provided that the residue should always amount to at least
a fourth of the testator’s property.
Bequest (which in English law is related to personalty as devise
to realty) has been used in connection with legacies, i.e. with dis-
positions in favour of legatarius as opposed to heres; in favour,
that is, of a person who takes a single thing belonging to the
testator, not his familia, or the Universitas of his rights and
obligations, or even a fraction of this Universitas,
§ 119. The praetor only sustained a testament in spite of its
civil invalidity when the grounds of civil invalidity were merely
1.8115-122.]] BONORUM POSSESSIO TESTATI. 215
want of external formalities (mancipation, nuncupation), not against
more material defects, such as preterition of self-successor, § 148,
D. 87,2, 7. He sustained it, however, against the preterition of
suus postumus, if suus postumus died before the testator, D. 28,
8, 12.
§ 120. The praetorian succession, or right of succession intro-
duced by the praetor under the name of Bonorum possessio, some-
times beside, and sometimes instead of, civilis hereditas, may be
divided into testate succession and intestate succession. The latter
branch (bonorum possessio intestati) was firmly established at an
earlier period than the former (bonorum possessio secundum tabu-
las). The rescript of Marcus Aurelius, mentioned by Gaius, may
be regarded as having definitively established the vahdity of the
praetorian testament; in other words, as having raised in respect of
validity bonorum possessio testati to the level of bonorum possessio
intestati.
In its origin Bonorum possessio was probably only the pro-
visional or interimistic possession granted to one of the parties
ma suit of Hereditatis petitio. This suit was a species of Real
action (vindicatio), and in all Real actions it is necessary to deter-
wine which of the litigants shall have possession during the
pendency of the litigation. In the earliest period, that of statute-
process (legis actio), the interim possession was called vindiciae, and
the praetor who assigned it to one of the parties was said vindicias
dicere, 4 § 16. In making the grant of vindiciae he was probably
governed by the same rule which afterwards prevailed when the
question of interim possession was determined by application of the
Interdicts Utrubi and Uti possidetis: that is to say he probably
allowed the party in actual possession to continue in possession.
But this rule was inapplicable to the case of Hereditatis petitio, for
at the decease of the proprietor who leaves an inheritance not one of
the claimants to succeed is in actual possession. Here accordingly
the grant was governed by different principles : if a will, prima facie
valid, was propounded, possession was granted to the claimant
under the will (bonorum possessio secundum tabulas): if no will
was propounded possession was granted to the civil heirs (bonorum
possessio ab intestato), the self-successor or descendant (suus heres)
being preferred to the agnates or collaterals (legitimi) At a
later period, persons who were not recognized as heirs by the
civil code, namely cognates, and the wife or husband, were put
216 DE RERUM UNIVERSITATIBUS. [11. §§ 115-122.
in possession in default of civil heirs: and children (liberi) who
by emancipation had lost the character of self-successors, were
nevertheless admitted to possession in the first rank just as if
they had continued unemancipated. The right of provisional pos-
session of course corresponded to a presumptive right of definitive
ownership.
Although a will was propounded, yet if a descendant of the
testator was therein pretermitted (praeteritus), i.e. not expressly
either instituted successor or disinherited, possession was not
granted to the devisees but to the pretermitted descendant (bono-
rum possessio contra tabulas). Contra-tabular possession was some-
times equivalent to intestacy, sometimes to partial testacy. If the
praeteritus was suus heres the will was absolutely void: if the
praeteritus was an emancipated son, although he obtained contra-
tabular possession, he was bound, as we shall see, by some of the
dispositions of the will; so that his succession was partly intestate,
partly testate.
§ 122. In ancient Rome, females, even after attaining their
majority, were subject to perpetual guardianship. In the time of
Gaius, the only effectual guardianship to which they continued
subject appears to have been that of ascendants and patrons, cf. 1,
189-193 ; 2, 85, 112. By the time of Justinian even this had
ceased, for he mentions without any reservation that the tutelage of
women ceases on their attaining the age of 12, Inst. 1, 22.
DE EXHEREDATIONE LIBERORUM.
§ 123. Item qui filium in potes-
tate habet, curare debet ut eum uel
heredem instituat uel nominatim
exheredet ; alioquin si eum silentio
praeterierit, inutiliter testabitur,
adeo quidem, ut nostri praeceptores
existiment, etiamsi uiuo patre filius
defunctus sit, neminem heredem ex
eo testamento existere posse, quia
scilicet statim ab initio non con-
stiterit institutio. sed diuersae
&cholae auctores, siquidem filius
mortis patris tempore uiuat, sane
inpedimento eum esse scriptis here-
dibus et illum ab intestato heredem
$ 123. Moreover, a testator who
has a son in his power must take
care either to institute him heir or
to disinherit him, for passing him
over in silence vacates the will.
So much so, that according to the
Sabinians, even if the son die in
the lifetime of the father, no devisee
can take under the will because of
its original nullity. But, according
to the Proculeians, although the
son, if alive at the time of his
father's death, bars the devisees
and takes as self-successor by in-
lestacy, yet, if the son die before
1. §§ 123-137.] DE EXHEREDATIONE LIBERORUM.
fier1 confitentur; si uero ante mor-
tem patris interceptus sit, posse ex
testamento hereditatem adiri pu-
tant, nullo iam filio inpedimento ;
quia scilicet existimant (non) sta-
tim ab initio inutiliter fieri testa-
mentum filio praeterito.
$ 124. Ceteras uero liberorum
personas si praeterierit testator,
ualet testamentum, (sed) praete-
ritae istae personae scriptis heredi-
bus in partem aderescunt, si sui
heredes gint, in uirilem, si extranei,
in dimidiam. id est si quis tres
uerbi gratia filios heredes institu-
erit et filiam praeterierit, filia ad-
crescendo pro quarta parte fit heres,
et ea ratione idem consequitur, quod
ab intestato patre mortuo habitura
esset; a£ si extraneos ille heredes
instituerit et filam praeterierit,
filia adcrescendo ex dimidia parte
fit heres. quae de filia diximus,
esdem et de nepote deque omnibus
liberorum personis sew masculini
seu feminini sexus dicta intellege-
mus.
$125. Quid ergo est? licet eae
secundum ea quae diximus, scriptis
heredibus. dimidiam partem. detra-
hant, tamen praetor eis contra tabu-
las bonorum possessionem promittit,
qua ratione extranei heredes a tota
hereditate repelluntur et efficiuntur
sine re heredes.
$ 126. Et hoc iure utebamur,
quasi nihil inter feminas et mas-
culos interesset ; sed nuper impera-
tor Antoninus significauit rescripto
suo non plus nancisci feminas per
rum possessionem, quam quod
iure adcrescendi consequerentwr.
quod in emancipatarum quoque
persona obseruandum est, «ul hae
quoque, quod adcrescendi iure habi-
turae eesent, si in potestate fuissent,
id i ipsum etiam per bonorum pos-
sessionem habeant.
217
the father, the devisees may suc-
ceed, being no longer barred by
the son, assuming that the will was
not absolutely vacated by his silent
pretermission.
§ 124. By the pretermission of
other self-successors a will is not
avoided, but the omitted persons
come in to share with the devisees,
taking an aliquot part if the latter
are self-successors, a moiety if they
are strangers. Thus if a man has
three sons and makes them his
successors, saying nothing of his
daughter, the daughter comes in
as co-successor and takes a fourth
of the estate, being deemed entitled
to the portion which would have
devolved to her by intestacy: but
when the devisees are strangers,
the daughter, if passed over, comes
in and takes a moiety. What has
been said of the daughter applies
to the son’s children, male and
female.
$ 125. But though a female ac- .
cording to this statement of the
law only deprives the devisees of a
moiety, the praetor promises to give
her contra-tabular possession, 80
that the devisees, if strangers, lose
the whole, and their succession is
ineffective.
§ 126. And this was once the
law, and there was no distinction
between males and females; but
A. Pius (or M. Aurelius) has re-
cently decided that female self-
successors shall not take more by
contra-tabular possession than they
would by coming in as coheirs at
civil law. And the same rule ap-
plies to emancipated daughters,
namely, that the shares they would
have had as coheirs had they not
been emancipated shall be the mea-
sure of what they obtain by contra-
tabular possession.
218
§ 127. Sed siquidem filius a
patre exheredetur, nominatim ex-
heredari debet; alioquin non uide-
tur exheredari. nominatim autem
exheredari uidetur, siue ita exhe-
redetur TITIVS FILIVS MEVS EX-
HERES ESTO, siue ita FILIVS MEVS|
EXHERES ESTO, non adiecto proprio
nomine.
$128. Ceterae uero liberorum
personae uel feminini sexus uel
masculini sa|tis inter ceteros ex-
heredantur, id est his uerbis CETE|RI
OMNES EXHEREDES 8YNTO, quae
uerba— post institutionem heredum
adici solent, Sed hoc ita—|.
§ 129. Nam praetor omnes uirilis
sexus liberorwm personas, | id est
nepotes quoque et pronepotes |
$130. Postumi quoque libert wel
heredes institui debent uel exhere-
dari.
$131. Et in eo par omnium
condicio est, quod (et) in filio poe-
twmo et in quolibet ex ceteris liberis
Blue feminini sexus siue masculini
praeterito ualet quidem testamen-
tum, sed postea agnatione postumt
&iue postumae rumpitur, et ea ra-
tione totum infirmatur. ideoque si
mulier, ex qua postumus aut pos-
tuma sperabatur, abortum fecerit,
nihil inpedimento est scriptis here-
dibus ad, hereditatem adeundam.
- $132. Sed feminini quidem sexus
personae wel nominatim uel inter
ceteros exheredari solent, dum tamen
st inter ceteros exheredentur, ali-
quid eis legetur, ne utdeantur per
obliuionem praeteritae esse. mas-
culini uero sexus personas placuit
non aliter recte exAeredari, misi
nominatim. exheredentur, hoc scilt-
DE RERUM UNIVERSITATIBUS. (rn.5$123-137.
$ 127. A son must be disinherited
individually ; otherwise the disheri-
son isinvalid. Individualdisherison
may be expressed in these terms:
Be Titius my son disinherited : or
in these: Be my son disinherited,
without inserting his name,
$ 128. Other male and all female
self-successors may be sufficiently
disinherited inter ceteros thus:
Be the remainder disinherited,
which words usually follow the
institution of the heir: this, how-
ever, is only the rule of the civil
law.
$ 129. For the Praetor requires
all male self-successors, sons, grand-
sons, greatgrandsons, to be disin»
herited individually, although he
permits females to be disinherited in
an aggregate, and, failing such dis
herison, promises them the contra-
tabular succession.
§ 130. Children born after the
making of the will must either be
instituted heirs or disinherited :
§ 131. and in this respect are
similarly privileged that, if a son
or any other self-successor, male or
female, born after the making of
the will, be passed over in silence,
the will is originally valid, but sub-
sequently rescinded and avoided by
the birth of the child; so that if
the woman from whom a child was
expected have an abortive delivery,
there is nothing to prevent the
devisees from taking the succes-
sion.
§ 132. Female self-successors born
after the making of the will may be
either individually or generally dis-
inherited, with this proviso, that if
they are generally disinherited, some
legacy must be left them in order
that they may not seem to have
been forgotten and pretermitted.
Male self-successors, sons and
1. §§123-137.] DE EXHEREDATIONE LIBERORUM.
cet modo QVICVMQVE MIHI FILIVS
GENITVS FVERIT, BX|HERES ESTO,
$ 132a. ——| potest u——|—
(4 uersus in C legi nequeunt)
jagat——|n——|,
§ 133. Postumorum autem loco
sunt et hi qui in sui heredis | locum
suecedendo quasi agnascendo fiunt
parentijbus sui heredes. ut ecce si
filium et ex eo nepotem ne|ptemue
in potestate habeam, quia filius gradu
praecedit, | ts solus iura sui heredis
habei, quamwis nepos quo|que et
neptis ex eo in eadem potestate sint ;
sed st filius meus me uiuo moria-
tur, aut qualibet ratione exeat de
potestate mea, incipit nepos neptisue
tn eius locum succe|dere, et eo modo
lura suorum heredum quas agna-
tone nanciscuntur.
$134. Ne ergo eo inodo rumpa-
tur mihi te|stamentum, sicut ipswn
fium uel heredem instituere uel |
exheredare debeo, ne non iure fa-
cam testamentum, ita et nepotem
neptemue ex eo necesse est mihi
uel heredem | instituere. uel exhere-
dare, ne forte, me uiuo filio mortuo,
succedendo in locum eius nepos nep-
hewe quasi agnatione rumpat tes-
tamentum ; idque lege Iunia Vel-
laea prouisum est, in qua simul
exberedationis modus notatur, ut
uirilis sexus (postumi) nominatim,
feminini uel nominatim uel inter
ceteros. exheredentur, dum tamen
us qui inter ceteros exheredantur,
aliquid legetur.
219
further lineal descendants, are held
not to be duly disinherited un-
less they are disinherited indivi-
dually, thus: Be any son that shall
be born to me disinherited.
$133. Withchildren bornafterthe
making of the will are classed chil-
dren who by succeeding to the place
of self-successors become subsequent
self-successors like the afterborn.
For instance, if a testator have a
son, and by him a grandson or
granddaughter under his power,
the son being nearer in degree
alone has the rights of self-suc-
cessor, although the grandson and
granddaughter are equally in the
ancestors power. But if the son
die in the lifetime of the testator,
or by any other means pass out of
the testator’s power, the grandson
and granddaughter succeed to his
place, and thus acquire the rights
of self-successors to the testator just
as if they were children born after
the making of the will.
$134. To prevent this subse-
quent avoidance of my will, just
as & son must be either instituted
heir or disinherited individually to
make a will originally valid, so a
grandson or granddaughter by a
son must be either instituted heir
or disinherited, lest if the son
die in the testator's lifetime the
grandson and granddaughter should
take his place and vacate the will
just as if they were children born
after its execution. The lex Junia
Velleia allows this and directs them
to be disinherited like children
born after a will is executed,
that is to say, males individually,
females either individually or col-
lectively, provided that those who
are disinherited collectively receive
a legacy.
220
§ 135 Zmancipatos liberos iure
ciuili neque heredes instituere ne-
que exheredare necesse est, quia
non sunt sui heredes; sed praetor
omnes tam feminini quam mascu-
lini sexus si heredes non insti-
tuantur, exheredari iubet, uirilis
sexus nominatim, feminini ue/ no-
minatim uel inter ceteros; quodsi
neque heredes instituti fuerint ne-
queita, ut supra diximus, exheredati,
praetor promittit eis contra tabulas
bonorum possessionem.
$ 135a. In potestate patrie non
sunt, qui cum eo ciuitate Romana
donati sunt nec in accipienda ciui-
tate Romana pater petiit ut eos in
testate haberet, aut, si petzit, non
Inpetrauit; nam qui (in) potes-
tatem patris ab imperatore redi-
guntur, nihil differunt a—.
$136. Adoptiui fili quamdiu
manent in ado|ptione, naturalium
loco sunt; emancipsti uero (a)
patre adoptiuo neque iure ciuili
neque quod ad edictum praetoris
pertinet, inter liberos numerantur.
$ 137. Qua ratione accidit, ut ex
diuerso quod ad naturalem paren-
tem pertinet, quamdiu quidem sint
in adoptiua familia, extraneorum
numero habeantur; si uero eman-
cipati fuerint ab adoptiuo patre,
tunc incipiant in ea causa esse,
qua futuri essent, si ab ipso natu-
rali patre (emancipatz) fuissent.
DE RERUM UNIVERSITATIBUS. [1. §§ 123-137.
$ 135. Emancipated children by
civil law need neither be appointed
heirs nor disinherited because they
are not self-successors. But the Prae-
tor requires all, females as well as
males, unless appointed heirs, to be
disinherited, males separately, fe-
males collectively, and if they are
neither appointed heirs nor disin-
herited as described, the Praetor
promises to give them the contra-
tabular possession.
$ 135a. Children who are made
Roman citizens along with their
father are not subject to his power,
if at the time he either omitted to
petition for, or failed to obtain, a
grant of patria potestas: but those
who are subjected to power by the
emperor differ in no respect from
those under power from time of
birth.
$ 136. Adoptive children, solong
as they continue in the power of the
adoptive father, have the rights of his
natural children: but when eman-
cipated by the adoptive father they
neither at civil law nor in the Prae-
lors edict are regarded as his
children,
§ 187. And conversely in respect
of their natural father as long as
they continue in the adoptive family
they are strangers: but when eman-
cipated by the adoptive father they
have the same rights in their natural
family as they would have had if
emancipated by their natural father
(that is, unless either instituted
heirs or disinherited by him, they
may claim the contra-tabular suc-
cession.)
§ 128. The necessity of disinheriting a suus heres is grounded
on the principle of primitive law, that the child is co-proprietor
with the parent: hence, unless something occurs to divest the
child of his property, he will simply become sole proprietor by
survivorship on the death of his father.
‘In
Dig. 38, 2, 11.
11. § 123-137.] DE EXHEREDATIONE LIBERORUM. 221
self-succession we have a still more striking instance of an un-
broken continuity of dominion, for there appears to be no vesting
of new property by descent, but the heir is deemed to have been
previously proprietor even during the lifetime of the father. Hence
the names filiusfamilias and paterfamilias, implying a similar legal
relation to the patrimony, though one is parent and the other child.
Therefore the death of the parent occasions no acquisition of new
property by descent, but only an increased freedom in the adminis-
tration of already existing property. Hence, even in the absence
of testamentary institution, a self-successor is proprietor : and it
is no objection to this, that a parent has the power of disin-
henting a self-successor, for he also had the power of putting him
to death.’
The characteristic of the Roman will that it grounded a Universal
succession (unlike the English will which may be a merely Partial
definition of the succession), which is expressed in the maxim:
Nemo pro parte testatus, pro parte intestatus decedere potest, had
its historic origin, not probably in a perception of its manifold
utility, but in the primitive form of the will—a proposal laid
before the legislative assembly for its sanction, § 101. The as-
sembly could no more judge of the justice of a proposed arrange-
ment without having laid before it the whole plan of succession
than i£ could judge of the fairness of a contract by inspection of
a single paragraph. It could not therefore allow the testator
merely to lay before it certain partial modifications of the intes-
tate succession and leave the rest of his inheritance to follow the
general rules of intestacy, without further informing the assembly
of their operation. This consideration involves the rules respecting
the effect of Praeteritio. If the testator’s dispositions were valid
in spite of Praeteritio, he would have it in his power to commit
a fraud upon the assembly by suppressing some element that was
material to enable them to form a judgment. Accordingly Prae-
teritio was made to defeat itself, in the case of the son by nullifica-
tion (inutilitas), in the case of other issue by Accretio, § 124. How-
ever, although by the Civil law Praeterition avoided a will and was
not cured by the death of Praeteritus before Testator, yet Praetorian
law only regarded the date of Testator’s death, and, if no Praeteritus
was then existent, counteracted the nullity of the will by Juxta-
tabulation, Savigny, $ 892.
After the introduction of the mancipatory will the fraud against
^
222 DE RERUM UNIVERSITATIBUS. [1.$$123-137,
the legislature would cease to be a motive for the rule requiring
the testator to define a Universal succession; but the rule was
retained in order to force the testator to have before his mind a
clear and systematic view of his intentions by requiring their
simultaneous expression in a single document. It secured the
afterborn from oblivion and protected the son who was falsely
supposed to be dead from the consequences of the testator’s error.
At the latest period the use of Codicils permitted to a certain
extent the partial and fragmentary disposition of a patrimony,
but this was not extended to. the principal point, the heredum
institutio. Ihering, § 53.
§ 124, Justinian abolished this accretion and equalized the
sexes, enacting that the pretermission of any suus heres or sua
heres should absolutely vacate a will, and entitle to bonorum pos-
gessio contra tabulas, like the pretermission of the son, Cod.
6, 28, 4.
§ 127. Justinian abolished this distinction and required that
all sui heredes should be disinherited individually like the son.
Thid.
§ 180. Afterborn children (postumi), that is, children born after
the making of a will, are uncertain persons, and by the general
rule that uncertain persons cannot be instituted or disinherited
(incerta persona heres institui non potest, Ulpian 22, 4), ought
to be incapable of institution or disinheritance, and, therefore, if
they are sui heredes, would necessarily invalidate a will, because
every will is informal when there exists a suus heres who is
neither instituted nor disinherited. If the suus heres was born
in the lifetime of the testator, the revocation of the will would
not be an irremediable evil, because the testator would still have
jt in his power to make another will, and accordingly in this
ease the civil law left the general rule to operate. But if the
suus heres were born after the death of the testator, the evil
would be irreparable, and the testator would die intestate. To
prevent this, the civil law made an exception to the rule that
an uncertain person cannot be instituted or disinherited, and
permitted the institution or disinheritance of any suus heres who
should be born after the death of the testator: and on the
authority of the celebrated jurist Aquilius Gallus, the inventor
of a form of acceptilation (8 $ 169), this power was extended to
the institution or disinheritance of any afterborn grandchild of
11. §§ 123-137.] POSTUMI SUI. 223
the testator whose father should die in the interval between the
making of the will and the death of the testator. Gallus Aqui-
lius sic posse institui postumos nepotes induxit: Si filius meus
vivo me morietur, tunc si quis mihi ex eo nepos sive quae neptis
post mortem meam in decem mensibus proximis, quibus filius
meus moreretur, natus nata erit, heredes sunto, Dig. 28, 2, 29, pr.
‘Gallus Aquilius introduced the institution of afterborn grand-
children in the following manner: If my son die in my lifetime,
then let any grandson or granddaughter by him who may be
born after my death within ten months after the death of my
son, be my successor,” Such grandchildren are called Postumi
Aquiliani.
In respect of the suus heres born after the making of the will
but in the lifetime of the testator, the case which the civil law
left to the operation of the general rule, it might certainly be
sometimes possible to make a new will after his birth, but it might
sometimes be impossible or highly inconvenient, and accordingly
the lex Junia Velleia passed A.p. 10, at the close of the reign of
Augustus, in its first chapter permitted such children also of the
testator, and also grandchildren of the testator born after their
father's death in the lifetime of their grandfather, to be insti-
tuted or disinherited. Such children and grandchildren were
called Postumi Velleiani primi capitis. In its second chapter it
permitted the institution or disinheritance of another class of un-
certain persons, viz. quasi-afterborn children (postumorum loco) ;
grandchildren, for instance, who were born before the making of
the will but whose acquisition of the character of sui heredes
by the decease of their father is subsequent to the making of
the will. |
Sueh grandchildren are called Postumi Velleiani secundi capitis.
Besides the Postumj Aquiliani, the Postumi Velleiani primi
capitis and the Postumi Velleiani secundi capitis, the jurist Salvius
Julianus who systematized the Edict established the validity of
the institution or disinheritance of a fourth class, intermediate
between the Postumi Velleiani of the first and second chapter:
grandchildren, namely, who like the Velleiani of the first chapter
were born after the making of the grandfather's will, but who
like those. of the second chapter were born before the death of
their father. Such grandchildren are not sui heredes to their
grandfather at their birth, but only by succession, that is by the
224 DE RERUM UNIVERSITATIBUS. [n.$$123-137.
subsequent death of their father, like those of the second chapter,
D. 28, 2, 29, 15.
The following is a conspectus of the different kinds of Postumi
sui, le. descendants who after the making of a will come into
the immediate power of a testator, whether (A) children or (B)
grandchildren: to remoter descendants analogous principles will
apply.
(A) Children are either
(a) Veritably afterborn, that is to say born after their father has
made his will, whether after their father's decease, in which case
the civil law treated them as certae personae, or in their father's
lifetime, in which case they form a subdivision of Velleiani primi
capitis :
(6) Or quasi-afterborn (loco postumorum), i.e. quasi-sons or
quasi-daughters by adrogatio, adoptio, legitimatio, in manum
conventio.
(c) Another quasi-afterborn is the child who falls under the
immediate power of his soldier father, that is, becomes his suus
heres, in consequence of the death of his grandfather, in whose
power he previously was, after his father has made a soldier's
will. D. 28, 2, 28, 1.
(B) Afterborn grandchildren who, as self-successors to their
grandfather, require institution or disinheritance in his will fall
into four classes, differentiated by the order of priority in which
certain events occur, as hereunder indicated :
PosrUMI ÁQUILIANI,
Will of grandfather: Death of father: Death of grandfather:
Birth of grandchild.
. PosruuI VELLEIANI Primi Capitis,
Will of grandfather: Death of father: Birth of grandchild :
Death of grandfather.
Postumi SALviANI,
Will of grandfather: Birth of grandchild: Death of father:
Death of grandfather.
Postumi VELLEIANI SECUNDI CAPITIS,
Birth of grandchild: Will of grandfather: Death of father:
Death of grandfather.
The two last cases depend on the principle of successio. "The
1. § 123-137.) CONTRA-TABULAR POSSESSION. 225
grandchild is at birth in the power of his grandfather, but is
not his suus heres, so long as there is an intervening ascendant—
the father—in the same power. On the death of the intervening
ascendant the grandchild is said to succeed to his place, and be-
comes by such succession suus heres to his grandfather. Van-
gerow, § 468.
The afterborn stranger, though incapable at civil law of being
appointed heir (§ 242), was relieved by the praetor who gave him
the juxta-tabular possession. Justinian allowed him to take the
legal estate, Inst. 3, 9, pr.
§ 182. To the necessity of leaving some legacy to the dis-
inherited afterborn sua heres (and not, as Blackstone suggests,
to the querela inofficiosi) we must attribute the vulgar error in
England of the necessity of leaving the heir one shilling in
order to cut him off effectually. The querela inofficiosi was not
barred by any legacy, however slight, being left to the heir,
but only by giving him one fourth of his intestate portion.
(For the changes which Justinian made in the law on this
subject see Inst. 2, 18, 1. 2. Novella. 18, 1.) It seems that even
8 legacy left to an afterborn sua heres might be unavailing to
save the will from avoidance, unless it amounted to one fourth
of her share by descent. If no legacy at all were left, the will
would be informal from want of proper disinheritance of the sua
heres, and absolutely void; if less than a fourth of her share
were left, the will would not be absolutely void but voidable, i. e.
lable to be overthrown if the aggrieved party chose to impeach
it as inofficiosum.
$135a. The Praeteritio of a descendant who is suus heres to
the testator or, but for emancipation, would be suus heres, en-
titles the descendant to contra-tabular possession. If the praeteritus
is suus heres, the will is absolutely void and contra-tabular posses-
sion is an intestate succession: but if the praeteritus is emanci-
pastus, the effect of contra-tabular possession is to divide the
inheritance between the praeteritus and other descendants who
were instituted successors, excluding both instituted strangers and
disinherited descendants.
Contra-tabular possession might be claimed either by the prae-
tentus himself, or by any of the instituted descendants. For if an
instituted heir took less by his institution than he would by this
partial intestacy, it would be his interest to claim contra-tabular
Q
226 DE RERUM UNIVERSITATIBUS. [n.$$123-137.
possession, commisso. per alium edicto, ‘the edict having been
made applicable by another,’ i.e. by the pretermission of another
descendant.
'The portions of the will that remained in force were:
(1) The exheredations:. for such of the liberi as were duly
disinherited continued, as was mentioned, excluded from the in-
heritance :.
(2) The pupillary substitutions, the nature of which will here-
after, $ 179, be explained :
(3) Legacies given to certain conjunctae personae, e. g. legacies
to ascendants or descendants of the testator, or a bequest to the
wife of the dower which she had brought to her husband. If,
instead of making the conjuncta persona a legatee, the testator had
given. his bounty in the form of a portion of the succession in which
the conjuncta persona was instituted successor, such institution con-
tinued valid. The validity, however, of such legacies and institutions
was by a constitution of Antoninus Pius, D. 87, 5, 7, 8 pr. (possibly
the same as the rescript mentioned by Gaius § 120, $ 126 4)
subjected to this limitation, that all the conjunctae personae to-
gether could not take more than a virilis portio, i. e. as much as
fell to the lot of the contra-tabulant or claimant of contra-tabular
possession ; with this further proviso, that any conjuncta persona
who is instituted heir in a portion of the heritage may retain as
much thereof as he would have obtained by elaiming contra-tabular
possession.
The partial intestacy produced by contra-tabular possession shows
that the rule which we have already quoted: nemo pro parte tes-
tatus pro parte intestatus decedere potest: must be taken with
some reservation. Although a testator cannot voluntarily dispose
of only part of his heritage, such partial disposition may be intro-
duced against the testator's intention by the operation of law. The
significance of the rule is principally this: that if a testator only
names a successor for a certain fraction of the heritage : or if the
fraction devised to one of several successors lapses by his decease
before the testator’s death, the undevised or lapsed portion does not
devolve, as it would in English law, to the heirs-at-law or persons
entitled by intestacy, but goes by accrual (accretio) to the devisee
or devisees of the remainder of the heritage.
u.§§ 138-146.] Q. M. TESTAMENTA INFIRMENTUR.
227
QUIBUS MODIS TESTAMENTA INFIRMENTUR.
$ 138. Siquis post factum testa-
mentum adoptauerit sibi filium aut
pr populum eum qui sui iuris est,
aut per praetorem eum qui in po-
testate parentis fuerit, omni modo
testamentum eius rumpitur quasi
agnatione sui heredis.
$ 139. Idem iuris est, si cui post
factum testamentum uxor inmanum
conueniat, uel quae in manu fuit
nubat ; nam eo modo filiae loco
esse incipit et quasi sua.
$140. Nec prodest, siue haec
siue ille qui adoptatus est, in eo
testamento sit institutus institu-
taue; nam de exheredatione eius
superuacuum uidetur quaerere, cum
testamenti faciendi tempore suorum
heredum numero non fuerit.
$ 141. Filius quoque qui ex prima
secundaue mancipatione manumit-
titur, quia reuertitur in potestatem
patriam, rumpit ante factum testa-
mentum ; nec prodest, (st) in eo
testamento heres institutus uel ex-
heredatus fuerit.
$142. Simile ius olim fuit in
eius persona cuius nomine ex sena-
tusconsulto erroris causa probatur,
quia forte ex peregrina uel Latina
quae per errorem quasi ciuis Ro-
mana uxor ducta esset, natus esset ;
nam siue heres institutus esset a
parente siue exheredatus, siue uiuo
patre causa probata siue post mor-
tem eius, omni modo quasi agna-
tione rumpebat testamentum.
$143. Nunc uero ex nouo sena-
tusconsulto quod auctore diuo Had-
rino factum est, siquidem uiuo
petre causa probatur, aeque ut olim
omni modo rumpit testamentum;
si uero post mortem patris, prae-
teritus quidem rumpit testamen-
$ 138. If after making his will a
man adopts as son either a pater-
familias by a lex curiata or a filius-
familias by mancipation and ficti-
tious vindication, his will is inevit-
ably vacated as it would be by the
subsequent birth of a self-successor.
$ 139. The same happens if after
making his will the testator receives
a wife into his hand, or marries a
person who is in his hand, as she
thereby acquires the rights of a
daughter and becomes his self-suc-
cessor.
§ 140. And it is unavailing that
such a wife or adopted son was in
that will appointed heir, for not
having been self-successors when
the will was made they clearly
cannot have been therein disin-
herited.
§ 141. So a son, manumitted
after the first or second sale reverts
into the power of his father and
vacates a previous will, nor does
it avail that he is therein appointed
heir or disinherited.
$ 142. The same.rule formerly
held of the son in whose behalf the
decree of the genate allows proof of
error, if he was born of an alien
or Latin mother who was married
in the mistaken belief that she was
a Roman [see 1 $ 67]: for whether
he was appointed heir by his father
or disinherited, and whether the
error was proved in his father's life
or after his death, in every case the
will was avoided as by the subse-
quent birth of a self-successor.
$143. Now, however, by a re-
cent decree of the senate, made on
the proposition of the late emperor
Hadrian, if the father is alive when
the error is proved, the old rule
obtains and the willis in every case
avoided; but when the error is
Q 2
228
tum, si uero heres in eo scriptus
est uel exheredatus, non rumpit
testamentum ; ne scilicet diligenter
facta testamenta rescinderentur eo
tempore quo renouari non possent.
§ 144. Posteriore quoque testa-
mento quod iurefactum est, superius
rumpitur. nec interest, an exti-
terit aliquis ex eo heres, an non
extiterit; hoc enim solum specta-
tur, an existere potuerit. ideoque
si quis ex posteriore testamento
quod iure factum est, aut noluerit
heres esse, aut uiuo testatore, aut
post mortem eius, antequam here-
ditatem adiret, decesserit, aut per
eretionem exclusus fuerit, aut con-
dicione sub qua heres institutus est
defectus sit, aut propter caeliba-
tum ex lege Zulia summotus fuerit
ab hereditate : quibus casibus pater
familias intestatus moritur, nam et
prius testamentum non ualet, rup-
tum 28 posteriore, et posterius
aeque nullas uires habet, cum ex
eo nemo heres extiterit.
$ 145. Alio quoque modo testa-
menta iure facta infirmantur uelut?
(cum) is qui fecerit testamentum,
capite deminutus sit; quod quibus
modis accidat, primo commentario
relatum est.
$146. Hoc autem casu inrita
fieri testamenta dicemus, cum alio-
quin et quae rumpuntwr, inrita
fiant, (et quae statim ab initio non
iure fiunt, inrita sint; sed et ea
quae ture facta sunt et postea prop-
ter capitis deminutionem | inrita
Jíunt,) possunt nihilo minus rupta
dici. sed quia sane commodius
erat singulas causas singulis appel-
lationibus distingui, ideo quaedam
non iure fieri dicuntur, quaedam
iure facta rumpi uel inrita fieri.
DE RERUM UNIVEBSITATIBUS. [n.$$138-146.
proved after the father's death, if
the son was passed over in silence,
the wil is vacated; but if he was
appointed heir or disinherited the
will is valid; so that carefully ex-
ecuted wills shall not be rescinded
at a period when re-execution is im-
possible.
§ 144. A subsequent will duly exe-
cuted is a revocation of a prior will,
and it makes no difference whether
& successor ever actually takes under
it or no; the only question is,
whether one might. Accordingly,
whether the successor instituted in
& subsequent will duly executed
declines to be successor, or dies in
the lifetime of the testator, or after
his death before accepting the suc-
cession, or is excluded by expira-
tion of the time allowed for delibe-
ration, or by failure of the condition
under which he was instituted, or
by celibacy as the lex Julia pro-
vides ; in allthese cases the testator
dies intestate, for the earlier will is
revoked by the later one, and the
later one is inoperative, as it creates
no actual successor.
§ 145. There is another event
whereby a will duly executed may
be invalidated, namely, the testator's
undergoing a loss of status: how
this may happen was explained in
the preceding book.
$ 146. In this case the will may
be said to be null; for although
both those that are rescinded and
those that are not duly executed
may be said to be null, and those
that are duly executed but subse-
quently annulled by loss of status
may be said to be vacated, yet asit
is convenient that different grounds
of invalidity should have different
names to distinguish them, we will
say that some wills are unduly exe-
cuted, others duly executed but
subsequently vacated or subse-
quently annulled.
11. §§ 147-151.] BON. POSS. SECUNDUM TABULAS. 229
§ 188. The innovations of Justinian changed the effects of
adoption. Under his enactment, if a child is adopted by an
ascendant the old rules obtain; but a person adopted by a
stranger only acquires rights in the adoptive family in case of
the adopter’s intestacy, and therefore need not be instituted or
disinherited by the adopter; he retains, however, his rights in
his natural family, and therefore must be instituted or disin-
hernted in the will of his natural parent. 1 § 97-107 Comm.
§ 139. By English law the only circumstance by which a will
is avoided (besides revocation, cancellation, execution of a later
will) is the marriage of the testator, and this operates universally,
irrespectively of the birth of children.
$140. This was reversed before the time of Justinian, for we
find in D. 28, 3, 18 that the institution of the future adoptive
son saves a will from being ruptured by adoption. Indeed, con-
sidering that the object of the lex Velleia was to save wills from
rupture, we may be surprised that the extension of its provisions -
from the natural postumi to the artificial postumi or quasi postumi
had not been established in the days of Gaius.
BONORUM POSSESSIO SECUNDUM TABULAS.
§ 147. Non tamen per omnia
inutilia sunt ea testamenta quae
ue] ab initio non iure facta sunt uel
iure facta postea inrita facta aut
rupta sunt. nam si septem testium
signis signata sint testamenta, po-
test scriptus heres secundum tabu-
las bonorum possessionem petere,
si modo defunctus testator et ciuis
Romanus et suae potestatis mortis
tempore fuerit. nam si ideo inri-
tum factum sit testamentum, quod
puta ciuitatem uel etiam libertatem
testator amisit, aut ts in adoptio-
nem se dedit (et) mortis tempore
in adoptiui petris potestate fuit,
non potest scriptus heres secundum
tabulas bonorum possessionem pe-
tere.
$ 148. (Jtaque qui) secundum
tabulas testamenti quae aut statim
sb initio non iure factae sint, aut
$147. Wills are not altogether
inoperative either when originally
informal or when at first valid and
subsequently vacated or annulled ;
for if the seals of seven witnesses
are attached, the testamentary heir
is entitled to demand juxta-tabular
possession, or possession in accord-
ance with the will, if the testator
was a citizen of Rome and in his
own power at the time of his death ;
but if the cause of nullity was, say,
the testator's loss of citizenship,
or loss of liberty, or adoption and
he dies [an alien or slave or] subject
to his adoptive father’s power, the
devisee is barred from demanding
the juxta-tabular possession.
§ 148. Juxta-tabular possession
according to a will either originally
irregular or originally regular and
230
iure factae postea ruptae uel inri-
tae erunt, bonorum possessionem
accipiunt, si modo possunt heredi-
tatem optinere, habebunt bonorum
possessionem cum re; si uero ab
‘tis auocari hereditas potest, habe-
bunt bonorum possessionem sine
re.
$149. Nam ai quis heres iure
ciuili institutus sit uel ex primo
‘uel ex posteriore testamento, uel ab
intestato iure legitimo heres git, is
potest ab tis hereditatem awocare ;
si uero nemo sit alius iure ciuili
heres, ipsi retinere hereditatem pos-
sunt, nec ullum ius aduersus eos
habent cognati, qui legitimo iure
deficiuntur.
$ 149 a. Aliquando tamen, sicut
supra quoque notauimus, etiam
legitimis heredibus | potiores scripti
habentur, ueluti si ideo non iure |
factum sit testamentum, quod fa-
milia non uenierit, aut nun|cupa-
tionis uerba testator locutus non
git ; | agnati petant here-
ditatem——_——_| ex constitutione
$ 150. | ueri lege
Iulia | possessores ela
lege bona caduca fiunt et ad popu-
lum deferri | iubentur, si defuncto
nemo ;
$ 151. |Potest ut iure facta testa-
menta contraria woluntate | infir-
mentur. apparet (autem) non
posse ex eo solo infirmalri testamen-
tum, quod postea testator id nol-
uerit ualere, usque adeo, ut si
linum eius inciderit, nihilo minus
iure ciuili ualeat. quin etiam si
deleuerit quoque au£ conbusserit ta-
bulas testamenti, miizlo minus
(non) desinent ualere quae ibi
fuerunt scripta, licet eorum pro-
batio difficilis sit.
DE RERUM UNIVERSITATIBUS. [1 §§ 147-151.
subsequently vacated or annulled,
if tenable without molestation, is
effective; if defeasible by an ad-
verse claimant, is ineffective [see
3 $ 36].
$ 149. For a successor duly ap-
pointed by an earlier or later will,
or & statutory successor by intes-
tacy, can evict the juxta-tabular
ossessor from the inheritance
[ee however, § 120]; but in de-
ault of such claim on the part of
& civil successor, the juxta-tabular
successor can retain the inherit-
ance, arid cannot be deprived of it
by cognates, these having no civil
title.
§ 149 a. Sometimes, however, a
successor with a civil title is post-
poned to an irregularly appointed
Successor; for instance, if the irre-
gularity was only the absence of
mancipation or nuncupatory publi-
cation, since if the agnates of the
deceased claim the inheritance, they
may be repelled by the plea of fraud,
&ccording to the constitution of the
Emperor Antoninus.
$ 150. Juxta-tabular succession
is not defeated by the lex Julia,
under which law a condition of
caducity or devolution to the fiscus
is the absence of every kind of suc-
cessor.
$151. A validly executed will
may be invalidated by revocation :
but a will is not invalidated by the
mere intention of revocation. And
consequently, in spite of the testa-
tor's cutting the strings by which it
is tied, it nevertheless, at civil law,
continues valid: and his erasure or
burning of the dispositions does
not render them invalid, though it
makes them difficult of proof.
11$$147-151.] BON. POSS, SECUNDUM TABULAS.
$151 a. Quid ergo est? si quis
ab intestato bonorum possessionem
petierit et is | qui ex eo testamento
heresest, petat hereditatem,
perueniat hereditas ;
et hoc ita rescripto imperatoris
Antonini significatur.
231
$ 151 a. What then is the result ?
If a claimant demand bonorum pos-
Sessio by intestacy, and a devisee
demand the civil inheritance under
the will, the latter is repelled by the
plea of fraud : and if no one should
demand bonorum possessio by title
of intestacy, the devisee is super-
seded by the fiscus as unworthy
of the succession in order to carry
the testator’s intention of ex-
cluding him into effect: and this
was enacted by a rescript of Marcus
Aurelius Antoninus.
§ 147. The validity of a testament implies, strictly speaking, the
continuance of a testator’s intention, and therefore of his capacity
of intention (testamentifactio), from its first declaration to the
moment of his death. Accordingly an intermediate capitis diminutio
made the will invalid (irritum) at civil law. The praetor, however,
only looked at the first and last moments, and, if at these periods
the testator had testamentifactio, sustained his intentiohs by grant-
ing juxta-tabular possession.
So at civil law a will was broken (ruptum) by after-birth
(agnatio) of a self successor, $ 138; but if he died before the
testator, the praetor sustained the will by granting juxta-tabular
succession to the heres scriptus. Postumus praeteritus, vivo testa-
tore natus, decessit. Licet juris scrupulositate nimiaque subtilitate
testamentum ruptum videatur, attamen si sighatum fuerit testamen-
tum, bonorum possessionem secundum tabulas accipere heres scriptus
poterit, remque obtinebit, ut et divus Hadrianus et Imperator
noster rescripserunt, D. 28, 8, 12, pr. In order that juxta-tabular
suecession, granted when a will had been avoided (irritum) by inter-
vening loss of capacity, might be efficacious (cum re), i.e. not
defeasible by the claimant entitled at civil law by intestacy, it was
necessary that the testator on reacquiring capacity should confirm
his will by a codicil, D. 37, 11, 11, 2.
§ 148. There was no ipso jure, or necessarius, bonorum possessor,
corresponding to the heres necessarius, § 152, with whom delatio
and acquisitio hereditatis were coincident: all bonorum possessores
corresponded to the other class of heres, the heres extraneus or
voluntarius, with whom acquisitio was distinct from delatio here-
ditatis, and required a voluntary act (aditio), That is to say,
232 DE RERUM UNIVERSITATIBUS. [n.$$147-151.
the person called (vocatus) by the praetorian edict to the succession
forfeited his right to succeed unless he made his claim (agnitio,
petitio, admissio, bonorum possessionis), within a certain period,
usually 100 dies utiles from the date of the vocatio (delatio). On
the claim being made, the grant (datio) of bonorum possessio
followed as a matter of course without any judicial investigation
(causae cognitio. It was a mere formality, a certificate of the
magistrate, the praetor or praeses provinciae, that the agnitio
had been made within the allotted period, before the expiration of
the term allowed for deliberation. If any real controversy arose,
it was decided by one of two actions, hereditatis petitio, or the
Interdict Quorum bonorum. If the claimant relied on his title
at civil law, he sued by hereditatis petitio; if he relied on the
title given him by the praetorian edict, he sued by the Interdict
Quorum bonorum. See 4 § 144. If defeated in either of these
proceedings, he gained nothing by having obtained the formal
grant of praetorian succession—he had only bonorum possessio
sine re.
§ 150. Onginally when a heritage was vacant from the failure
of intestate successors, Ulpian 28, 7, or from the neglect of a devisee
to. take possession, § 52, any stranger might take possession and
acquire by usucapio, but this right was abolished by Sc. Juven-
tianum. The lex Julia de Maritandis ordinibus, which is the
statute here mentioned, was passed a.p. 4; for an account of ite
purport and of the meaning of the term caduca see § 190 and § 206
comm. Besides its nghts to caduca under this statute the state
could claim all inheritances left without an heir (bona vacantia).
The state did not become necessary successor (ipso jure) but had the
delatio(ad populum deferri jubentur),i.e. had the right of deliberation
and acceptance or repudiation, Inst. 83, 11,1. As universal suc-
cessor the state could by the terms of Sc. Juventianum recover
from the unentitled occupant by Hereditatis petitio, D. 5, 3, 20, 7,
and could transfer its rights to a purchaser by Sc. Trebellianum,
ibid. 54, pr.
The Fiscus was bound to pay all codicillary legacies and trusts :
and succeeded to all the obligations active and passive, in other
words, to all the personal rights and personal duties, of the
heritage-leaver: but like other successors might, by taking ad-
vantage of the Benefice of inventory, confine its liability to the
extent of the assets. In the event of the repudiation of the suc-
1.6147-151.] EREPTION FOR INDIGNITY. 238
cession by the Fiscus, the goods were sold for the benefit of creditors.
Vangerow, § 564.
Escheat (derived from exciduta, the medieval participle of ex-
cidere) is etymologically the same word as caducum and denotes to
a certain extent a similar destination of property.
By English law, if a man dies intestate, and without kindred, :
the devolution of his property follows different rules according
as it is real or personal. By feudal law, if a vassal holding a
transmissible feud died without heirs, his feud escheated or re-
verted to the lord. So in England if a tenant in fee die with-
out leaving lawful heirs, his land escheats to the lord of the fee.
But the personal property of a man who dies intestate and without
kindred, goes to the crown, subject always to the widow’s right to a
moiety in case she survive.
Gaius here means that although a grant of bonorum possessio
might be rendered ineffective (sine re) in consequence of the superior
claims of à person with a civil title by whom the possessor could
be evicted, the fiscus had no title to an inheritance under the lex
Julia, if the deceased, though without a civil successor, had left a
bonorum possessor.
§ 151 a. Ereption for indignitas, an institution which survived in
the legislation of Justinian, D. 84, 9, C. 6, 35, must be distinguished
from the lapse of a devise under the lex Julia (caducum). In the
latter case there was want of capacitas, as opposed to want of testa-
mentifactio passiva, on the part of honoratus. In the case of the
mndignus there was not even incapacitas but only lability to
deprivation. Some grounds of Ereption were common to the heir
and legatee, others peculiar to the heir, others peculiar to the legatee.
The forfeiture of the inheritance or legacy was sometimes in favour
of the Fiscus, sometimes in favour of other persons, usually of
those who would have taken but for the disposition in favour of
indignus.
Instances of grounds for which either heir or legatee forfeited
their interest to the Fiscus were: a secret unlawful trust, coercion
of the testator in respect of his will, neglect to avenge the
death of the testator, a suit denying the status of the testator,
impeachment of the will for inofficiositas, demand of contra-tabular
possession, &e.
Grounds for which their shares were forfeited to other persons
than the Fiscus were: refusal of the office of guardian when the
234 DE RERUM UNIVERSITATIBUS. [n.$$147-151.
prospect of the discharge of this duty was the motive of the
testator's bounty, refusal to undertake the education of an infant
child of the testator, neglect of the testator’s burial, &c.
Grounds on which the heir alone forfeited the whole or part of
his inheritance to the Fiscus were: concealment of a portion of the
hereditaments in order to defraud a legatee (whereupon the heir
forfeited the fourth which he was entitled to retain from such
legacy by the lex Falcidia), the discovery that though putative son
he was not a genuine son of the testator, the deliberate cancella-
tion of his name by the testator, the imperfect execution of a
subsequent will in which he was excluded from the heritage, a
codicillary declaration of his unworthiness to inherit, &c.
Grounds on which an heir forfeited his portion to persous other
than the Fiscus were: neglect on the part of a mother to demand
a guardian for her infant child, a second marriage by a mother
who herself is guardian before she has caused another guardian to
be substituted, neglect of a lunatic testator, neglect to ransom the
testator, criminal prosecution of testator, &c.
Grounds exclusively affecting a legatee and that in favour of
the successor are theft from the heritage and concealment of the
testator's will.
One of the grounds of Ereption we have seen to be the
imperfect Rupture of a will. The Rupture (ruptio) of a will was
produced by two circumstances: (1) Agnatio postumi, the sub-
sequent birth of a self-successor, or the coming into existence of
a quasi postumus, $ 189: and (2) Revocation. On the principle,
Nihil tam naturale est quam eo genere quidque dissolvere quo
colligatum est (3 § 174), the most formal Revocation of a will
would be the execution of a subsequent will. Another mode of
Revocation sanctioned by Justinian depended on two conditions :
a, declaration attested by three witnesses or made in the form of a
record or protocol deposited in the archives of a court, and the
expiration of ten years from the date of the execution of the will,
C. 6, 28, 27.
The mere cancellation or obliteration of a will was an informal
Revocation and left the will valid at civil law: the devisee, how-
ever, was not allowed to take the inheritance against this evidence
of the testator’s change of intention, but forfeited the succession as
indignus. The rescript of Marcus Aurelius to this effect, to which
Gaius alludes, is preserved in the Digest, 28, 4, 8. The forfeiture
1. §§ 152-173. ]
DE HEREDUM QUALITATE.
235
was in favour of the Fiscus: but only after failure of the persons
entitled by intestacy.
Justinian ordained that a will should be perfectly Revoked and
completely avoided by the cutting of the cords, or removal of the
seals, or other intentional destruction of the outward signs of its
due solemnization, C. 6, 23, 80. Vangerow, § 565.
DE HEREDUM QUALITATE ET DIFFERENTIA.
$152. Heredes autem aut neces-
ear dicuntur aut sui et necessarii
aut extranei.
$153. Necessarius heres est ser-
wus cum libertate heres institutus,
ideo sic appellatus, quia siue uelit
siue nolit, omni modo post mortem
testatoris protinus liber et heres est.
$154. Vnde qui facultates suas
suspectas habet, solet seruum suum
primo aut secundo uel etiam ulteri-
ore gradu liberum et heredem insti-
tuere, ut si creditoribus satis non
fiat, potius huius heredis quam
ipsrus testatoris bona ueneant, id
est ut ignominia quae accidit ex
uendiione bonorum, hunc potius
heredem quam ipsum testatorem
contingat ; quamquam apud Fu-
fidium Sabino placeat eximendum
eum esse ignominia, quia non suo
uitio sed necessitate iuris bonorum
uenditionem pateretur; sed alio
iure utimur.
$ 155. Pro hoc tamen incommodo
illud ei commodum praestatur, ut
ea quae post mortem patroni Bibi
adquisierit, siue ante bonorum uen-
ditionem siue postea, ipsi reseruen-
tur; et quamuis pro portione bona
uenierint, iterum ex hereditaria
causa bona eius non uenient, nisi si
quid ei ex hereditaria causa fuerit
adquisitum, uelut si Latinus ad-
quisierit, locupletior factus sit ;
cum ceterorum hominum, quorum
bona uenierint pro portione, si quid
§ 152. Successors are necessary,
self-successors and necessary, or
external.
§ 153. A necessary successor is a
slave enfranchised and instituted
heir, so called because, willing or
unwilling, without any alternative,
on the death of the testator he im-
mediately has his freedom and the
succession.
$ 154. For when a man’s affairs
are embarrassed, itis common for his
slave, either in the first place or as
a substitute in the second or any
inferior place, to be enfranchised
and appointed heir, so that, if the
creditors are not paid in full, this
heir is insolvent instead of the
testator, and the ignominy of in-
solvency attaches to the heir in-
stead of the testator; though, as
Fufidius relates, Sabinus held that
he ought to be exempted from
ignominy, as it is not his own
fault, but legal compulsion, that
makes him insolvent; this, how-
ever, is not the law.
§ 155. To compensate this dis-
advantage he has the advantage
that his acquisitions after the death
of his patron, and whether before
or after the sale, are for his own
benefit, and although a portion
only of the debts is satisfied by the
sale, he is not liable to 4 second
sale of his after-acquired property
for the debts of the testator, unless
he gain anything as heir, if he in-
herit, for instance, the property of
a Latinus Junianus, another freed-
236
postea adquirant, etiam saepius
eorum bona uenire solent.
$156. Sui autem et necessarii
heredes sunt uelut filius filiaue,
nepos neptisue ex filio, (e£) dein-
ceps ceteri qui modo in potestate
morientis fuerunt. sed uti nepos
neptisue suus heres sit, non sufficit
eum in potestate aui mortis tem-
pore fuisse, sed opus est ut pater
quoque eius uiuo patre suo desierit
suus heres esse aut morte intercep-
tus aut qualibet ratione liberatus
potestate ; tum enim nepos neptisue
in locum sui patris succedunt.
$157. Bed sui quidem heredes
ideo appellantur, quia domestici
heredes sunt et uiuo quoque parente
quodammodo domini existimantur ;
unde etiam si quis intestatus mor-
tuus sit, prima causa est in succes-
sione liberorum. necessarii uero
ideo dicuntur, quia omni modo,
(siue) uelint siue (nolint, tam) ab
intestato quam ex testamento here-
des fiunt.
$ 158. Sed his praetor permittit
abstinere se ab heredi£ate, ut potius
parentis bona ueneant.
$159. Idem iuris est et (in)
uxoris persona quae in manu est,
quia filiae loco est, et in nuru quae
in manu fili est, quia neptis loco
est.
$160. Quin etiam similiter ab-
stinendi potestatem facit praetor
etiam ei qui in causa mancipti est,
(st) cum libertate heres institutus
Bit, quamuis necessarius, non etiam
DE RERUM UNIVERSITATIBUS. [m.$$152-173.
man of the testator; whereas other
persons, who only pay a dividend,
on subsequently acquiring any pro-
perty, are liable to repeated sales.
. $156. Self-successors and neces-
sary are such as a son or daughter,
a grandson or granddaughter by the
son, and further similar lineal de-
scendants, provided that they are
under the power of the ancestor
when he dies. Tomakea grandson
or granddaughter self-successor it
is, however, not sufficient that they
were in the power of the grand-
father at the time of his death, but it
is further requisite that their father
in the life of the grandfather shall
have ceased to be self-successor,
whether by death or by any other
mode of liberation from parental
power, as the grandson and grand-
daughter then succeed to the place
of the father.
§ 157. They are called self-suc-
cessors because they are members
of the family, and even in the life-
time of the parent are deemed
to a certain extent co-proprietors ;
wherefore in intestacy the first right,
of succession belongs to the chil-
dren. They are called necessary,
because they have no alternative,
but, willing or unwilling, both in
testacy and intestacy, they become
successors.
§ 158. The praetor, however,
permits them to abstain from the
succession, and leave the ancestor
to be declared insolvent.
§ 159. The same rule governs a
wife in the hand of a husband, for
she is on the footing of a daughter,
and a son's wife in the hand of the
Bon, for she is on the footing of a
granddaughter.
$ 160. A similar power of absten -
tion is granted by the praetor to &
person held in mancipation when
enfranchised and made successor,
although he is a necessary successor
m. §§ 152-173.]
suus heres sit, tamquam seruus.
$161. Ceteri qui testatoris iuri
subiecti non sunt, extranei heredes
sppellantur, itaque liberi quoque
nostri qui in potestate nostra non
sunt, heredes a nobis instituti [sicut |
extranel uidentur. qua de causa
et quia matre heredes instituuntur,
eodem numero sunt, quia feminae
liberos in potestste non habent.
serui quoque, qui cum libertate
beredes instituti sunt et postea a
domino manumissi, eodem numero
habentur.
$ 162. Extraneis autem here-
dibus deliberandi potestas data est
de adeunda hereditate uel non ade-
unda.
$163. Sed siue is cui abstinendi
potestas est, inmiscuerit se bonis
bereditartis, siue is cui de adeunda
(hereditate) deliberare licet, adierit,
postes reliquendae hereditatis facul-
tetem non habet, nisi si minor sit
annorum XXV. nam huius setatis
hominibus, sicut in ceteris omnibus
causis deceptis, ita etiam si temere
damnosam hereditatem susceperint,
praetor succurrit. scio quidem
diuum Hadrianum etiam maiori
IXY annorum ueniam dedisse, cum
post aditam hereditatem grande
aes alienum quod aditae here-
ditatis tempore latebat, apparuis-
get.
$ 164. Extraneis heredibus solet
cretio dari, id est finis deliberandi,
ut intra certum tempus uel adeant
hereditatem, uel si non adeant,
temporis fine summoueantur. ideo
autem cretio appellata est, quia
cernere est quasi decernere et con-
stituere.
$165. Cum ergo ita scriptum sit
HERES TITIVS ESTO, adicere debe-
mus CERNITOQVE IN CENTVM DIEBYS
DE HEREDUM QUALITATE. 237
and not a self-successor, mancipation
being assimilated to servitude.
§ 161. Those who were not sub-
ject to the testator’s power are called
strangers, or external successors.
Thus children not in our power, if
instituted successors, are deemed
strangers; and children instituted
by their mother belong to this class,
because women are not invested
with power over their children.
Slaves instituted heirs with freedom
annexed, and subsequently manu-
mitted, belong to the same class.
$ 162. External or voluntary
successors have the right of delibe-
rating whether they will accept or
disclaim a succession.
$163. But if a person who has
the power of abstention interferes’
with the succession, or a person
who has the power of deliberation
accepts, he has no longer the power
of relinquishing the inheritance,
unless he is a minor under twenty-
five years of age; for minors, both
when they take any other inju-
dicious step, and when they in-
cautiously accept a disadvantageous
inheritance, obtain relief from the
praetor. The late Emperor Ha-
drian even relieved & person who
had attained his majority, when,
after his acceptance of a succession,
a great debt, unknown at the time
of acceptance, had come to light.
$ 164. External heirs are com-
monly allowed an interval for de-
cision, that is, a definite delay for
deliberation, within which time
they must formally accept, and in
default of formal acceptunce are
barred. It isa term for decision,
because it is a term within which
the heir must come to a determina-
tion and resolution.
§ 165. Accordingly, after the
words, ‘ Titius, be thou my heir,’
we ought to add, ‘and formally
238
PROXIMIS QVIBVS SCIES POTERISQVE.
QVODNI ITA CREVERIS, EXHERES
ESTO,
$ 166. Et qui ita heres institu-
tus est, si uelit heres esse, debebit
intra diem cretionis cernere, id est
haec uerba dicere QVOD ME P. ME-
VIVS TESTAMENTO SVO HEREDEM
INSTITVIT, EAM HEREDITATEM ADEO
CERNOQVE. quodsi ita non cre-
uerit, finito tempore cretionis ex-
cluditur; nec quicquam proficit, si
pro herede gerat, id est si rebus
hereditariis tamquam heres utatur.
$167. At is qui sine cretione
heres institutus sit, aut qui ab in-
testato legitimo iure ad hereditatem
uocatur, potest &ut cernendo aut
pro herede gerendo uel etiam nuda
uoluntate suscipiendae hereditatis
heres fieri; eique liberum est quo-
cumque tempore uoluerit, adire
hereditatem ; (sed) solet praetor
postulantibus hereditartis creditor-
ibus tempus constituere, intra quod
si ueltt adeat hereditatem, si minus,
ut liceat creditoribus bona defuncti
uendere.
§ 168. Sicut autem (qui) cum
cretione heres institutus est, nisi
creuerit hereditatem, non fit heres,
it& non aliter excluditur, quam si
non creuerit intra id tempus quo
cretio finita est; itaque licet ante
diem cretionis constituerit heredi-
tatem non adire, tamen paenitentia
actus superante die cretionis cer-
nendo heres esse potest.
$169. Az és qui sine cretione
heres institutus est, quiue ab intes-
tato per legem uocatur, sicut uolun-
tate nuda heres fit, ita et contraria
destinatione statim ab hereditate
repellitur,
DE RERUM UNIVERSITATIBUS. [r.$$152-173.
declare whether thou accept within
& hundred days in which thou
knowest of thy institution and hast
power to declare; or in default of
so declaring be thou disinherited.’
$166. And the successor thus
appointed, if he wish to inherit,
must within the term prescribed
solemnly declare his decision in the
following words: ‘Whereas Publius
Mevius in his will has made me his
successor, that succession I hereby
accept and undertake. In default
of such formal declaration, the
elapsing of the period allowed shuts
him out from the inheritance, and
it is of no avail that he behave as
Successor, that is, deal with the
estate of the deceased as proprietor.
$ 167. In the absence of a pre-
scribed term for deliberation, and
in intestate succession at civil law,
a man takes the inheritance either
by formal declaration, or by acts of
ownership, or by informal declara-
tion, and is not barred from ac-
cepting by any lapse of time ; but
it is usual for the praetor, at the
demand of the creditors of the de-
ceased, to appoint a period, on the
expiration of which without his ac-
ceptance the creditors are permitted
to put up the estate of the deceased
for sale.
§ 168. When a term is prescribed
for formally declaring, a man is
barred by not declaring, but only
by not declaring within the last
day of the appointed term; and
though, pending the term, he may
have elected to disclaim, yet if he
change his mind before the time is
expired and formally declare his
acceptance, he takes the estate.
$ 169. If no term is prescribed
in the institution, or if & man is
entitled by intestacy at civil law,
just as an informal declaration
makes him heir, so the contrary
declaration immediately bars him
from the succession,
3r. §§ 152-173.]
§ 170. Omnis autem cretio certo
tempore constringitur. in quam
rem tolerabile tempus uisum est
centum dierum. potest tamen
nihilo minus iure ciuili aut longius
aut breuius tempus dari; longius
tamen interdum praetor coartat.
$ 171. Et quamuis omnis cretio
certis diebus constringatur, tamen
alia cretio uulgaris uocatur, alia
certorum dierum: uulgaris illa,
quam supra exposuimus, id est in
qua adiczuntur haec uerba QvIBYS
SCIET POTERITQVE ; certorum die-
rum, in qua detractis his uerbis
cetera scribuntur.
$ 172. Quarum cretionum magna
differentia est. nam uulgari cre-
tione data nulli dies conputantur,
nisi quibus scierit quisque se here-
dem esse institutum et possit cer-
nere. certorum uero dierum cre-
tione data etiam nescient? se here-
dem institutum esse numerantur
dies continui ; item ei quoque qui
aliqua ex causa cernere prohibetur,
et eo amplius ei qui sub condicione
heres institutus est, tempus nume-
ratur; unde melius et aptius est
uulgari cretione uti.
$ 173. Continua haec cretio uoca-
tur, quia continui dies numerantur.
sed quia [tamen] dura est haec cretio,
altera in usu habetur; unde etiam
uulgaris dicta est.
DE HEREDUM QUALITATE.
239
$ 170. Every period of delibera-
tion has a certain limit, and a
reasonable limit is held to be a
hundred days, yet by the civil law
a longer or shorter period is allowed
to be fixed, though a longer period
is sometimes shortened by the
praetor.
§ 171. Although, however, the
time of deliberation is always
limited to certain days, yet one
mode of limitation is called ordi-
nary, the other determinate; the
ordinary beingthat above indicated,
namely, with the addition of the
words, *after notice of institution
and available for declaration ;' de-
terminate that in which these words
are omitted.
$ 172. These modes are very
different in effect, for when the
ordinary period is allowed no days
are computed until the heir has
notice and is in & position to de-
cide, but when a determinate period
is allowed, notwithstanding the
heir's want of notice of his institu-
tion, the days begin to be counted
without intermission, and notwith-
Standing his inability from any
cause to declare, or any condition
annexed to his institution, neverthe-
less the days begin to be reckoned.
Accordingly, it is better and more
considerate to employ the ordinary
mode of limitation.
§ 173. The determinate period is
called continuous, because the days
are reckoned without intermission.
Because of the harshness of this
condition the other is commonly
employed, and hence is called or-
dinary.
§ 152. The rules of institution and disinheritance were restric-
tions of the unlimited power of testamentary disposition conferred
by the Twelve Tables,
The general tendency and purpose of
these restrictions are to protect children against the caprice of
parents, and to be fully comprehended they should be viewed
240 DE RERUM UNIVERSITATIBUS. [1.$$152-173.
in connection with three other branches of law, the rules re-
specting testamentum inofficiosum, the provisions of the lex
Falcidia and those of the senatusconsultum Pegasianum. All
these limitations of testamentary power may be considered as
correlations and compensations of the patria potestas. An Eng-
lish testator has unlimited power to dispose of his property, and
natural feeling is supposed to be a sufficient guaranty that none
of his children will be left without suitable provision. Of Roman
testators Justinian says rather crudely: Plerumque parentes sine
eausa liberos suos vel exheredant vel omittunt, Inst. 2, 18, pr.
‘Most parents disinherit or pretermit their children without any
cause.” In spite of this expression, we may conjecture that parental
caprice was not greater in Rome than in England, but the mon-
strous development of the patria potestas, whereby the person and
fortunes of the child were entirely at the mercy of the father during
his lifetime, made any instance of testamentary caprice seem more
iniquitous, more intolerable, in Rome than it would in England.
The restrictions were as follows :—
(1) We have seen that a suus heres must either be instituted
or disinherited. This secured him against being simply forgotten.
(2) If he was disinherited without a cause, or received less than
one fourth of his share by descent (quarta legitimae), he could by
impeaching the will as immoral or unnatural (querela inofficiosi
testamenti) have it set aside on the fictitious presumption of the
testator’s insanity. The presumption, at least, was so far fictitious
that it was not allowed to be rebutted by any other proof of his
sanity except proof of the adequacy of the motives for which the
child was disinherited. The querela inofficiosi was a form of petitio
hereditatis, that is, a real action, and fell under the jurisdiction of
the centumviral court. The amount which must be devised to a
suus heres to save a will from avoidance for inofficiositas was pro-
bably fixed by the lex Falcidia, for it is identical with the amount
which that law secures to the child when instituted heir. The
querela inofficiosi could not only be brought by suus heres but by
certain other near relatives, namely, parents, brothers, and sisters,
but by the two last only if a turpis persona was instituted, and by
children, even though emancipated, against their father's or mother's
will; in which cases, it must be confessed, the alleged motive,
compensation for the patria potestas, is wanting. See Inst. 2, 18,
Dig. 5, 2.
m. §§152-173.] DE HEREDUM QUALITATE. 241
(3) Although a saus heres were instituted heir, yet the institu-
tion might be made illusory by the exhaustion of the whole inherit-
ance in legacies, leaving nothing to the heir but the burden of
administration. To meet this, the lex Falcidia provided that when
more than three fourths of an inheritance is absorbed in legacies,
all the legacies should abate proportionably so as to leave the heir
a clear fourth of the portion in which he was instituted (quarta
Faleidia).
(4) The senatus consultum Pegasianum provided against the
inheritance being similarly exhausted by fideicommissa.
We may add that an infant adopted by adrogation, if dis-
inherited or without cause emancipated, was entitled to one
fourth of the inheritance of his adoptive father (quarta Antonini),
1 $ 102.
$ 157. Communism or co-ownership appears to be an older insti-
tation than divided or individual ownership. Even after the rights
of the paterfamilias had been enormously developed at the expense
of the rest of the household, a vestige of the times when property
vested rather in the family than in the chief was preserved in the
rules respecting the suus heres. Suus heres appears equivalent to
&bi heres, and implies that he who now enters on proprietary rights
in the character of paterfamilias had already possessed proprietary
nights over the same subject matter in the character of filius-
Less barbarous than self-successor (the term chosen to represent
suus heres as expressing sibi heres) but too long for perpetual use,
would have been the circumlocution, immediate lineal successor.
Suus heres is a lineal descendant as opposed to the legitimus heres
or agnate, who is a collateral relation : and he is an immediate suc-
cessor as opposed to an eventual successor. For instance, a grand-
son by an unemancipated son is in the grandfather's power, and
may eventually be his successor, but is not his suus heres during
the life of the son.
$162. After accepting an inheritance the heir became liable to
the testator's ereditors for the full amount of the testator's debts.
To avoid the danger of accepting an inheritance more onerous than
lucrative he might by application to the praetor obtain a delay of
3 hundred days for deliberation.
Justinian introduced the benefice of Inventory, reducing the
liability of an heir who made the required inventory to the extent
R
242 DE RERUM UNIVERSITATIBUS. [n.$$152-173:
of the assets that came to his hands. "The inventory must be com-
menced within thirty days from notice of the inheritance and
completed in sixty other days. It must be executed in the pre-
sence of a notary (tabellarius) and the persons interested or three
witnesses.
By English law the executor in every case 1s bound to make an
inventory, and in no case is he answerable to the testator's creditors
beyond the assets that come to his hands, unless for & sufficient
consideration he make his own estate chargeable by a written
engagement, as provided by the Statute of Frauds.
$ 165. When a right is extinguished by inactivity prolonged for
a certain period, the period has two modes of measurement: either
every day is counted, and then the period is called tempus con-
tinuum ; or only available days, days on which activity is possible,
are counted ; and. then the period is called tempus utile. When a
general rule prescribes a term, not greater than a year, within
which certain steps must be taken before a court or judicial
authority, on pain of forfeiting certain rights, such a term must
be measured as tempus utile. Such are the rules requiring certain
suits to be instituted within a year from their nativity, that is,
limiting a year for their period of prescription; and the rule
requiring the demand of the possession of a heritage (agnitio
bonorum possessionis), whether testate or intestate, to be made, if
the claimant is an ascendant or descendant, within a year; if he
is a stranger, within a hundred days. The demand was made in
writing, addressed to à competent magistrate, and was followed by
an immediate grant de plano in the form of a simple subscriptio,
Do bonorum possessionem. Kunzte, 856. When the step required is
rendered impossible, not by a permanent obstacle, such as infancy,
lunacy, prodigality, or juristic personality, but by some transitory
circumstance, the days on which the action is hindered are excluded
from the computation of the term.
Such hindrance (1) may relate to the person entitled, and then
will be his captivity, or his absence on public service, or his deten-
tion by weather or illness, coupled with inability to appoint a
procurator :
- (2) Or, in the case of the limitation of actions, it may relate to
the person of the defendant: if, for instance, he is unknown, or
concealed, or absent and undefended :
(3) Or it may consist in the absence of the praetor from the
n. § 152-173, ] TEMPUS UTILE. 243
court. Such absence might be accidental, or it might arise from
the regular intermission of the dies juridici, or days on which the
praetor performed his judicial functions, § 279 Comm. As in the
time of Marcus Aurelius, such days only amounted to 230 in a year
(Suetonius, Octavianus, 32), this cause alone would make annus
utilis equivalent to about 14 ordinary years. The intermission of
dies juridici was doubtless the principal cause of a claimant’s
inability to perform an act in: court on certain days: but in con-
temporary Roman law, now that judicial acts consist in delivery
of writings at the office of a court irrespectively of its session days
and vacations, this cause has lost its importanee.
Knowledge (scientia) of the fact that he is entitled’ is not neces-
sarily requisite on the part of the person entitled : in-other words
his ignorance is not always sufficient to exclude a day from the
number of dies utiles. The prescription of an action, when it is
accomplished in annus utilis, begins to run from its nativity (actio
nata), irrespectively of the plaintiff's knowledge of his right to sue.
Ignorance of a right of action is generally the effect of Negligence,
and therefore undeserving of relief, and might be protracted for
an indefinite period. On the contrary, ignorance is sometimes
a condition that delays the commencement of tempus continuum :
for instanee, the 5O dies continui allowed to & person for stating
the grounds on which he was entitled to be excused from accepting
a guardianship only began to run when he had notice of his nomi-
nation, Inst. 1, 25, 16 : which shows that scientia and ignorantia
have no necessary relation to the distinction of dies utiles and dies
continui.
In the demand (agnitio) of possession, however, by the claimant
of a testate or intestate succession, the edict expressly made the
scientia as well as the potestas of the claimant a condition of dies
utilis, D. 38, 15, 2. Indeed the aditio of an inheritance was not
valid unless made with a knowledge of the fact of the delatio and
of its nature, whether testacy or intestacy. Moreover the igno-
rance of his rights could not be ascribed to the negligence of
the person entitled, nor was it likely to be indefinitely protracted,
as it would be the interest of the person next entitled to give him
notice of the delation. Knowledge will generally only affect the
beginning of a term, and the person who is once made aware of the
delation of an inheritance will usually continue aware: but it is
possible that a period of error should supervene; for instance, that,
R 2
244 DE RERUM UNIVERSITATIBUS. [n. §§ 174-184:
after an agnate has notice that he is entitled by intestacy and after
his term for acceptance has commenced to run, a forged will should
be produced and obtain credit : in which case the dies utiles would
not continue to run until the forgery of the will was ascertained.
Savigny, § 189.
The testamentary clause allowing a term for Cretio vulgaris, like
the edict relating to bonorum possessio, made scientia as well as
potestas a condition of temporis utilitas.
§ 178. Acquisitio hereditatis was either Formless; when it might
be made by express declaration (Aditio) or by tacit declaration (Pro
herede gestio); or it was Formal (Cretio). Recusatio hereditatis
was either by verbal declaration (Repudiatio), or by omission of
acceptance within the term prescribed (Omissio). It could not be
made after acquisitio. The formularies of cretio, tending to defeat
institutio in favour of substitutio, had no intelligible policy ; for we
cannot imagine any rule such as: substitutiones esse adjuvandas.
After being dispensed with in certain cases by other emperors, they
were totally abrogated by Justinian: Cretionum scrupulosam sol-
lennitatem hac lege penitus amputari decernimus, Cod. 6, 80, 17.
‘Solemn declaration with its embarrassing formalities is hereby
decreed to be absolutely abolished.” When it became customary for
the praetor to grant to any devisee who desired it a hundred days
for deliberation, the designation of such a period by the testator
became unnecessary.
No time was prescribed by law for the aditio of the civil in-
heritance, $ 167: for the acquisition (agnitio) of the praetorian
succession we have seen that for ascendants and descendants a year
for others a hundred days was prescribed, Inst. 8, 9, 9. Agnitio
and Repudiatio could be made by a procurator or agent, D. 37, 1,8, 7 :
not so aditio, D. 29, 2, 90, and still less Cretio.
DE VULGARI SUBSTITUTIONE.
$ 174. [ns svasriTrvTIONIBvS.] — $ 174. Sometimes two or more
Interdum duos pluresue gradus degrees of heirs are instituted, as
heredum facimus, hoc modo r. follows: ‘Lucius Titius, be thou
TITIVS HERES ESTO CERNITOQVE IN my successor, and declare solemnly
DIEBVS (CENTVM) PROXIMIS QVI- within a hundred available days
BV8 SCIES POTERISQVE. QVODNI after notice of delation: or, in de-
ITA CREVEBIS, EXHERES ESTO. TVM fault of so declaring, be disinherit-
MEVIVS HERES ESTO CERNITOQVE ed. Then, Mevius, be thou my
IN DIEBVS CENTVM et reliqua. et successor, and declare within a hun-
n. § 174-184.) DE VULGARI SUBSTITUTIONE.
deinceps in quantum uelimus sub-
stituere possumus.
$175. Et licet nobis uel unum
in unius locum substituere plures-
ue, e& contra in plurium locum
uel unum uel plures substituere.
$176. Primo itaque gradu scrip-
tus heres hereditatem cernendo fit
heres et substitutus excluditur;
non cernendo summouetur, etiamsi
pro herede gerat, et in locum eius
substitutus succedit. et deinceps
si plures gradus sint, in singulis
simili ratione idem contingit.
$ 177. Bed si cretio sine exhere-
datione sit data, id est im haec
uerba SI NON CREVERIS, TVM P.
MEVIVS HERES ESTO, illud diuer-
sum inuenitur, quod si prior omissa
cretione pro herede gerat, substi-
tutum in partem admittit et fiunt
ambo aequis partibus heredes,
quodsi neque cernat neque pro
herede gerat, tum sane in uniuer-
eum summouetur, et substitutus in
totam hereditatem succedit.
$178. Sed Sabino quidem pla-
euit, quamdiu cernere et eo modo
heres fieri possit prior, etiamsi pro
herede gesserit, non tamen admitti
substitutum ; cum uero cretio finita
sit, tum pro herede gerente admitti
substitutum. aléis uero placuit
etiam superante cretione posse eum
pro herede gerendo in partem sub-
stitutum admittere et amplius ad
cretionem reuerti non posse.
245
dred days, &c.; and in this way
we can make as many substitutions
as we like. E |
$ 175. We may substitute in
place of one either one or several,
&nd, conversely, in the place of
several we may substitute either
geveral or one.
$ 176. Accordingly, if the person
instituted in the first degree accepts
the inheritance, he is heir, and the
substitutes are excluded: if he fail
to declare with due formality, he is
barred in spite of acta of owner-
ship, and his place is taken by the
Substitute; andif there are several
degrees, in every one a similar re-
sult occurs.
$ 177. If the formula conferring
& power of deliberation contains no
clause of disherison, but merely
consists of these words: ‘If thou
fail to declare, be Publius Mevius
my heir, [cretio imperfecta] the
result is herein different, that, if
the person first instituted, though
he omit the solemn declaration, act
as heir, the substitute is only ad-
mitted to a portion, and both take
a moiety: if he neither formally
declare nor act as heir, he is en-
tirely excluded, and the substitute
takes the whole.
$178. It was the opinion of
Sabinus that, as long as a term
prefixed for formally declaring and
taking the succession subsists, if a
person in & higher grade act as
heir, he does not let in the substi-
tute, and that [in cretio imperfecta]
even after the expiration of the
term his acts of heirship make him
coheir with the substitute. But
the other school held that, even
pending the allotted term, acts of
eirship let in the substitute and
bar the prior heir from reverting
to his right of formal declaration.
246
DE PUPILLARI
§ 179. Liberis nostris inpuberi-
bus quos in potestate habemus, non
solum ita, ut supra diximus, sub-
Btituere possumus, id est ut si
heredes non extiterint, alius nobis
heres sit ; sed eo amplius ut etiamsi
heredes nobis extiterint et adhuc
inpuberes mortui fuerint, sit iis
aliquis heres; uelut hoc modo
TITIVS FILIVS MEVS MIHI HERES
ESTO, BI FILIVS MEVS MIHI ( HERES
NON ERIT SIVE HERES) ERIT ET
PRIVS MORIATVR QVAM IN SVAM
TVTELAM VENEBIT, TVNC SEIVS
" HERES ESTO.
$180. Quo casu siquidem non
extiterit heres filius, substitutus
patri fit heres; si wero heres ex-
titerit filius et ante pubertatem
decesserit, ipsi filio fit heres .sub-
stitutus. quam ob rem duo quo-
dammodo sunt testamenta, aliud
patris, aliud filii, temquam si ipse
filius sibi heredem instituisset ; -aut
certe unumest testamentum duarum
hereditatum.
$ 181. Ceterum ne post obitum
parentis periculo insidiarum sub-
lectus uideatur pupillus, in usu est
uulgarem quidem substitutionem
palam facere, id est eo loco quo
pupilum heredem instituimus;
(nam) uulgaris substitutio ita
uocat ad hereditatem substitutum,
si omnino pupillus heres non ex-
titerit; quod accidit, cum uiuo
parente moritur, quo casu nullum
substituti maleficium suspicari pos-
sumus, cum scilicet uiuo testatore
omnia quae in testamento scripta
sint, ignorentur. :llas autem sub-
stitutionem, per quam ettams: heres
extiterit pupillus et intra puber-
tatem decesserit, substitutum uo-
camus, separatim in inferioribus
tabulis scribimus, easque tabulas
proprio lino propriaque cera con-
DE RERUM UNIVERSITATIBUS. [n.$$174-184.
SUBSTITUTIONE.
$ 179. To children below the age
of puberty in the power of the tes-
tator, not only can such a substi-
tute as we have described be ap-
pointed, that is, one who shall take
the succession on their failure to
inherit, but also one who, if after
inheriting they die before attaining
the age of puberty, shall be their
successor; which may be done in
the following terms: ‘Be my son
Titius my successor, and if my son
does not become my successor, or
after becoming my successor die
before attaining the age of puberty,
then be Seius the successor.’
.$ 180. In which case, if the son
fail to inherit, the substitute 1s the
heir of the testator, but if the son
die after inheriting and without
attaining the age of puberty, the
Bubstitute is heir to the son. Thus
there are two wills, so to speak, the
father's and the son's, just as if the
son had made a successor; or at
any rate there is one will dealing
with two inheritances.
$ 181. However, to save the
ward from the danger of foul play
after the death of the parent, it is
common for the ordinary substitu-
tion to be made openly, that is, in
the clause wherein the ward is in-
stituted, for as the ordinary substi-
tution only calls a man to the suc-
eession in ease of the ward altogether
failing to inherit, and this can only
occur by his death in the lifetime
of his parent, the substitute in this
case is open to no suspicion of
crime, because while the testator
is alive the contents of the will
are a secret. But the substitution
wherein & man is named heir on
the succession and death of the
ward is written separately on later
tablets, tied with their own cords
and sealed with their own wax, and
1. § 174-184.) DE PUPILLARI SUBSTITUTIONE.
signamus, et in prioribus tabulis
cauemus, ne inferiores tabulae uiuo
filio et adbuc inpubere aperiantur.
sed longe tatius est utrumque genus
substitutionis [separatim
ferioribus tabulis consignari, quod
st ita [consignatae uel] separatae
fuerint substitutiones, ut diximus,
ex priore potest intellegi in altera
falter] quoque idem esse substi-
tutus.
$182. Non solum autem here-
dibus institutis inpuberibus liberis
ita subetituere possemus, ut si ante
pubertatem mortui fuerint, sit is
heres quem nos uoluerimus, sed
etiam exheredatis. itaque eo casu
si quid pupillo ex hereditatibus
legatisue aut donationibus propin-
quorum adquisitum fuerit, id omne
ad substitutum pertinet.
$ 183. Quaecumque diximus de
substitutione inpuberum liberorum
uel heredum institutorum uel exhe-
redatorum, eadem etiam de postu-
mis intellegemus.
$ 184. Extraneo uero heredi in-
stituto ita substituere non possu-
mes, ut si heres extiterit et intra
aliquod tempus decesserit, alius ei
heres sit; sed hoc solum nobis per-
missum est, ut eum per fideicom-
missum obligemus, ut hereditatem
noetram totam uel (pro) parte re-
stituat; quod ius quale sit, suo loco
emus,
in in-'
247
prohibited in the prior tablets to
be opened in the lifetime of the son
before he attains the age of puberty.
Indeed it is far safer that both
kinds of substitution should be
sealed up separately in two subse-
quent tablets, for if the ordinary
substitution is contained in the
first tablets it is easy to conjecture
that the same substitute is appoint-
ed in the second. j
$ 182. Not only when we leave
our succession to children under
the age of puberty can we make
such a substitution that if they die
before puberty tbe substitute is
their successor, but we can do it
when we disinherit them, so that
whatever the ward acquires by de-
vises, legacies, donations of his rela-
tives, all passes to the substitute.
$ 183. What has been said of
substitution to children below the :
age of puberty, whether appointed
heirs or disinherited, is true of sub-
stitution to afterborn children.
$ 184. To a stranger instituted
heir we cannot appoint & subetitute
who, if the stranger inherit and die
within a certain time, shall be his
successor ; we have only the power
to bind him by a trust to convey
the inheritance to another, in part
or in whole, a right which shall
be explained in the proper place.
[2 § 277.]
6177. A constitution of Marcus Aurelius changing this rule,
and mentioned by Ulpian: Sed postea divus Marcus constituit, ut
et pro herede gerendo ex asse fiat heres, 22, 84: ' Subsequently
Marcus Aurelius enacted that acts of heirship should make him
exclusive heir, was clearly not enacted when this paragraph was
written by Gaius, and furnishes an indication of the date at which
this book of his Institutions was published. Marcus Aurelius was
sole emperor A.D. 169—176.
$179. Cicero frequently mentions a great case in which the
question arose whether a vulgaris substitutio may be implied from
a pupillaris substitutio, The centumviral court decided that the
248 DE RERUM UNIVERSITATIBUS. ([1. § 185-190.
intention rather than the words of the testator should prevail, and
that the heir appointed to succeed the son in case the son died
before puberty should be deemed appointed to succeed the testator
in case no son was born: Malim mihi L. Crassi unam pro M’.
Curio dictionem quam castellanos triumphos duos, Brutus, 73.
‘I would rather have made the single speech of Lucius Crassus
for Manius Curius than have had two triumphs for the capture of
fortresses.’ The other passages are worth referring to, De Orat.
1, 89,:57; 2, 6, 32; Brutus, 39, 52; Pro Caecina, 18; Topica, 10.
Marcus Aurelius enacted that in every case pupillaris substitutio
should be implied in vulgaris substitutio and vice versá, unless the
contrary intention was expressed, Dig. 28, 6, 4.
§ 184. That is to say, we cannot limit an estate in remainder so
that it shall take effect, without the aid of reconveyance, after the
determination of the intervening estate for life. All we can do is to
direct the tenant for life to reconvey at his death to the remainder-
man. Hereditas is indelible (semel heres semper heres). Regula
‘ est juris civilis qua constitutum est hereditatem adimi non posse.
D. 28, 2, 18, 1.
DE HEREDIBUS INSTITUENDIS.
$ 185. Sicut autem liberi homi-
nes, ita et serui, tam nostri quam
alieni, heredes scribi possunt.
§ 186. Sed noster seruus simul
et liber et heres esse iuberi debet,
id est hoc modo sTICHVS SERVVS
MEVS LIBER HERESQVE ESTO, uel
HERES LIBERQVE ESTO.
$ 187. Nam si sine libertate
heres institutus sit, etiamsi postea
manumissus fuerit & domino, heres
esse non potest, quia institutio in
persona eius non constitit ; ideoque
licet alienatus sit, non potest iussu
domini noui cernere hereditatem.
§ 188. Cum libertate uero heres
institutus siquidem in eadem causa
durauerit, fit ex testamento liber et
inde necessarius heres. si uero ab
ipso testatore manumissus fuerit,
suo arbitrio hereditstem adire po-
$ 185. Not only freemen but
slaves, whether belonging to the
testator or to another person, may
be instituted heirs.
$ 186. A slave belonging to the
testator must be simultaneously
instituted and enfranchised in the
following manner: ‘Stichus, my
slave, be free and be my heir ;" or,
‘ Be my heir and be free.’
§ 187. Lf he is not enfranchised
at the same time that he is ineti-
tuted, no subsequent manumission
by his owner enables him to take
the succession, because the institu-
tion is originally void, and if aliened
he cannot declare his acceptance by
the order of the alienee.
$188. When a slave is simul-
taneously instituted and enfran-
chised, if he continue in the same
condition, the will converta him
into a freeman and a necessary heir :
if the testator himself manumits
wr. § 186-190.] DE HEREDIBUS INSTITUENDIS.
test. quodsi alienatus sit, iussu
noui domin? adire hereditatem de-
bet, qua ratione per eum dominus
Bt heres; nam ipse neque heres
neque liber esse potest. —
§ 189. Alienus quoque seruus
heres institutus si in eadem eausa
durauerit, iussu domini hereditatem
adire debet; si uero alienatus ab eo
fuerit aut uiuo testatore aut post
mortem eius, antequam cernat, de-
bet iussu noui domini cermere ; si
uero manumissus est, suo arbitrio
adire hereditatem potest.
$190. Si autem seruus alienus
heres institutus est uulgari cre-
tione data, ita intellegitur dies cre-
tionis cedere, si ipse seruus scierit
se heredem institutum esse, nec
ullum inpedimentum sit, quominus
eertiorem dominum faceret, ut illius
lussu cernere possit.
249
him in his lifetime, he may use his
own discretion about acceptance:
if he is aliened he must have the
order of his new master to accept,
and then his master through him
becomes successor, the alienated
slave himself becoming neither suc-
cessor nor free.
$189. When another person's
slave is instituted heir, if he con-
tinue in the same position, he must
have the order of his master to
accept the succession; if aliened
by him in the lifetime of the tes-
tator, or before formal acceptance,
he must have the order of the
alienee to accept: if manumitted
before acceptance, he may follow
his own judgment as to accepting.
§ 190. When a slave of another
person is instituted heir with the
ordinary term allowed for delibera-
tion, the term only begins to run
when the slave has notice of his ap-
pointment, and is not disabled from
informing his master so that he may
obtain his order for acceptance. |
$187. This rule was abolished by Justinian, who enacted that
the enfranchisement of the testator's slave, though unexpressed,
should always be implied in his institution as heir. Cod. 6, 27,5;
Inst. 1, 6, 2.
$188. Justinian explains why the slave lost his liberty: Des-
titisse enim a libertatis datione videtur dominus qui eum alienavit,
Inst. 2, 14, 1. ‘A revocation of the bequest of liberty is inferred
from the fact of his alienation.’ If we ask why the implied inten-
tion that suffices to revoke the enfranchisement does not suffice to
revoke the institution, the answer is, that a bequest can be revoked
by implied intention, whereas an institution requires 4 more solemn
revocation, by cancellation of the will, or execution of a later will,
or some other means, § 151.
$ 189. What was the motive of instituting as successor the slave
of another person? Such a disposition eould not be dictated by
kindness to the slave, for he would gain nothing by his institution ;
but was a device adopted for two purposes, (1) for facilitating the
250 DE RERUM UNIVERSITATIBUS. (a. §§ 185-190.
conversion of a succession into money, and (2) for securing a
devise against lapse.
(1) By such a disposition the testator gave the devisee who was
proprietor of the slave the option of either becoming actual suc-
cessor, or of doing, what he could not otherwise readily do [2 § 36],
i.e. of receiving the net value, or a large portion of the net value,
of the succession, without incurring the expense of the annexed
sacred rites (sacra) and the burden of administration, by practi-
cally selling the succession for the highest price he could get to
any one who was willing to incur these expenses and troubles
as a matter of speculation. To effect this, he had only to sell
the slave at a price enhanced by his character of institutus. The
slave thereupon, making aditio of the inheritance in obedience to
an order of the purchaser, vested the inheritance in the purchaser.
If the former proprietor was reluctant to part with his slave, he had
only to bargain for his reconveyance by a fiducia or covenant
annexed to the sale or mancipatio. Reddendus (i.e. mancipandus)
est servus ea conditione ut, cum jussu ejus adierit, rursum retra-
datur. By this branch of speculation the instituted slave might
pass through many hands before the succession vested, D. 37, 11,
2, 9.
.. (a) A second object gained by the institution of another person's
slave was the transmission of an inheritance to the heirs of an
intended devisee. If the devisee died in the lifetime of the testator,
the devise lapsed, and the lapse could not be prevented by the
substitution (secondary institution) of the heir of the devisee, for
such heir would be a persona incerta, $ 242. The difficulty was
met by instituting a slave, who on the death of his master, the
virtual devisee, would become the slave of the devisee's successor,
and acquire for him the succession of the testator. To guard
against the contingency of the death of the slave in the lifetime
of the testator, several slaves might be instituted by way of sub-
stitution. Ihering, $ 56. Hereditas delated to a slave is said to be
Ambulatoria: Ambulat cum dominio hereditas servo delata, D. 37,
11, 2, 9. So we might say: ambulat cum capite noxa, 4 $ 77.
$ 190. In the corresponding title of the Institutes, 2, 14, Justinian
mentions that an heir might either be appointed to take the whole
of an inheritance or to share it with other coheirs in any propor-
tions. We may briefly state the technical terms and rules of inter-
pretation by which different shares were allotted. An inheritance
1.$6$185-190.] DE HEREDIBUS INSTITUENDIS. 261
was commonly regarded as a pound (as) consisting of twelve ounces
(unciae). The different fractions were thus denominated : uncia,
a twelfth of an as, or an ounce; sextans, a sixth of an as, or two
ounces ; quadrans, a fourth of an as, or three ounces ; triens, a third
of an as, or four ounces; quincunx, five ounces; semis, half an as,
or six ounces; septunx, seven ounces; bes (bis triens), two thirds
of an as, or eight ounces ; dodrans (deme quadrantem), an as minus
& fourth, or nine ounces; dextans (deme sextantem), an as minus
a sixth, or ten ounces ; deunx (deme unciam), an as minus an ounce,
or eleven ounces; as, twelve ounces.
Àn heir instituted in twelve ounces (ex asse) took the whole: but
it was a rule that no one could be partly testate and partly intes-
tate, and therefore if an heir were instituted in a part (ex parte)
and no other coheir instituted, that part represented & pound, and
the heir took the whole. So if the shares allotted to several coheirs
amounted to more than twelve ounces, then, if no other heir was
appointed with an unexpressed share, the as was deemed to consist
of more than twelve ounces, and each coheir took a ratable part of
the inheritance. If one heir were instituted in a part, say ex besse,
and a coheir were instituted for whom no part was expressed, then
the coheir would take the residue of the as, that is, would be
deemed. to be instituted ex triente. But if the parts expressed for
certam heirs exhausted or exceeded the as and another heir or heirs
were named without express shares, then the whole inheritance was
supposed to consist of two asses (dupondius) and the expressed
shares were reduced to so many ounces out of twenty-four, the heir
_or heirs with unexpressed parts taking the residue. Similarly,
if necessary, the inheritance was supposed to consist of thirty-six
ounces.
If the institution of one coheir lapsed, the shares of the remaining
coheirs were ratably augmented (accretio) just as, if originally
less than twelve ounces had been distributed, the expressed shares
of each would be ratably augmented so as to exhaust the inherit-
ance.
This rule, however, was modified by the leges caducariae, passed
chiefly to discourage celibacy, namely the lex Julia de maritandis
ordinibus, a.p. 4, and the lex Papia Poppaea, on marriage and suc-
cession, A. D. 9, in which the provisions of the lex Julia were in-
eorporated, for which reason both laws are sometimes referred to as
lex Julia et Papia.
252 DE RERUM UNIVERSITATIBUS. [11 §§ 186-190.
Caducum is a devise or bequest, valid at Civil law, but vacated
by some particular statute, Ulpian, 17, 1. ‘A vacant devise or
bequest is one valid at civil law, but lapsed by some statute, such
as a legacy to a celibate or Latinus Junianus, who fails within
a hundred days to comply with the law, or acquire full citizen-
ship; or a devise to a coheir, or bequest to a legatee who dies
or becomes an alien before the will is opened [By the Civil law,
unconditional devises and bequeste vested (dies cedit) at the death
of the testator (though still defeasible by the failure of the will);
by the lex Papia Poppaea not before the opening of the will,
but Justinian reestablished the rule of Civil law.]
The leges caducariae, which fixed the conditions of caducity,
were aimed against the coelebs and the orbus. Coelebs is defined
io be an unmarried man between the age of twenty and sixty,
or an unmarried woman between the age of twenty and fifty.
Orbus is & man between fifty and sixty without children, natural
or adoptive.
A celibate could take nothing as heres extraneus or legatee; an
orbus could only take half of the devise or bequest intended for
him. The devises thus lapsed were allotted by the leges caducariae
in the first place to conjoint legatees of the same specific thing with
children ; in the second place to heirs with children; in the third
place to other legatees with children; and in last remainder to
the treasury (aerarium), 2 § 206. Caracalla, a.D. 212-217, made them
lapse immediately to the treasury ; Hodie ex constitutione impera-
toris Antonini omnia caduca fisco vindicantur, sed servato jure
antiquo liberis et parentibus, Ulpian, 17,2, * At present by a consti- ,
tution of Caracalla, all caducous devises are confiscated, saving the
rights of ascendants and descendants.’ From the rules of caducity
ascendants and descendants of the testator to the third degree were
excepted both by the lex Papia and by the constitution of Caracalla.
Constantine, A.D. 820, abolished the pains and penalties of celibacy
and childlessness, Cod. 8, 58, and Justinian formally and finally
abrogated the leges caducariae.
By substitutions or alternative institutions testators were able to
modify the course of accrual by Civil law (jus accrescendi), and
what perhaps was still more interesting, to escape from the opera-
tion of the laws of caducity, by which sometimes a whole inherit-
ance might fall into the clutches of the treasury.
n. $$ 191-223. ]
$191. Post haec uideamus de
legatis. quae pars iuris extra pro-
positam quidem materiam uidetur;
nam loquimur de his iuris figuris,
quibus per uniuersitatem res nobis
sdquiruntur; sed cum omni modo
de testamentis deque heredibus qui
testamento instituuntur, locuti su-
mus, non sine causa sequenti loco
poterit haec iuris materia tractari.
DE LEGATIS.
258
$ 191. Let us now examine lega-
cies, a kind of title which seems
foreign to the matter in hand, for
we are expounding titles whereby
aggregates of rights are acquired ;
but we had at any rate to treat
of wills and heirs appointed by
will, and it is natural in close
connection therewith to consider
this species of title [for a legacy ig
an accessory of a willl.
DE LEGATIS.
$192. Legatorum itaque genera
sunt quattuor: aut enim per uindi-
cationem legamus aut per damna-
fionem aut sinendi modo aut per
praeceptionem.
$193. Per uindicationem hoc
modo legamus TITIO uerbi gratia
HOMINEM STICHVM DO LEGO; sed
(e!) si alterutrum uerbum positum
ait, ueluti Do aut LEGO, aeque per
uindicationem legatum est; item,
ut magis «isum est, si ita legatum
fuerit SVMITO, uel ita SIBI HABETO,
uel ita CAPITO, aeque per uindica-
tionem legatum est.
$194. Ideo autem per uindica-
tonem legatum appellatur, quia
post aditam hereditatem statim ex
iure Quiritium res legatarti fit; et
si eam rem legatarius uel ab herede
uel ab alio quocumque qui eam pos-
sidet, petat, uindicare debet, id est
intendere suam rem ex iure Quiri-
Gum esse.
$ 195. In eo solo dissentiunt
prudentes, quod Sabinus quidem et
Cassius ceterique nostri praecep-
lores quod ita legatum sit, statim
post aditam hereditatem putant
fleri legatarii, etinumsi ignoret sibi
legatum | esse [dimissum], sed post-
eaquam scierit et — lega|tum, pro-
inde esse atque si legatum non es-
set; Nerua uero et Proculus cete-
rique illus scholae auctores non
$192. Legacies are of four kinds;
by vindication, by condemnation,
by permission, by preception.
§ 193. A legacy by vindication is
in the following form: ‘To Lucius
Titius I give and bequeath, say, my
slave Stichus,’ or only one word
need be used as,‘I give or be-
queath my slave Stichus;’ and
other terms such as: ‘Let him
take,’ ‘Let him have,’ ‘Let him
seize, equally confer a legacy by
vindication according to the pre-
vailing opinion.
§ 194. It is so called, because
immediately on the acceptance of
the succession the thing becomes
the Quiritarian property of the le-
gatee, and if he claims it from the
heir or any other possessor, he ought
to bring a real action, that is, de-
clare himself proprietor thereof by
law of the Quirites.
§ 195. However there is a con-
troversy on this matter between
jurists, for according to Sabinus
and Cassius and the other autho-
rities of my school, what is thus left
becomes the property of the legatee
immediately on the acceptance of
the succession, even before he has
notice of the legacy, and on notice
and repudiation by the legatee, the
legacy is cancelled. Nerva and
254 DE RERUM UNIVERSITATIBUS. [n.$$191-223.
aliter putant rem legatarü fieri,
quam si uoluerit eam ad se perti-
nere. sed hodie ex diui Pii An-
tonini constitutione hoc magis iure
uti videmur quod Proculo placuit ;
nam cum legatus fuisset Latinus
per uindicationem coloniae, Deli-
berent, inquit, decuriones, an ad se
uelint pertinere, proinde ac si uni
legatus esset.
§ 196. Hae autem solae res per
uindicationem legantur recte, quae
ex iure Quiritium ipsius testatoris
sunt. sed eas quidem res quae
pondere numero mensura constant,
placuit sufficere, si mortis tempore
Sint ex iure Quiritium testatoris,
ueluti uinum oleum frumentum
pecuniam numeratam. ceteras res
uero placuit utroque tempore tes-
tatoris ex iure Quiritium esse de-
bere, id est et quo faceret testamen-
tum et quo moreretur; alioquin
inutile est legatum.
$ 197. Sed sane hoc ita est iure
ciuili. postea uero auctore Nerone
Caesare senatusconsultum factum
est quo cautum est, ut si eam rem
quisque legauerit quae eius num-
quam fuerit, proinde utile sit lega-
tum, atque si optimo iure relictum
esset ; optéimum autem ius est per
damnationem legati, quo genere
etiam aliena res legari potest, sicut
inferius apparebit,
$ 198. Sed si quis rem suam le-
gauerit, deinde post testamentum
factum eam alienauerit, plerique
putant non solum iure ciuili inutile
esse legatum, sed nec ex senatus-
consulto confirmari. quod ideo dic-
tum est, quia et si per damnationem
aliquis rem suam legauerit eamque
postea alienauerit, plerique putant,
licet ipso iure debeatur legatum,
Proculus and the jurists of that
school make the passing of the pro-
perty to the legatee depend on his
accepting the legacy; and now a
constitution of the late emperor
Pius Antoninus seems to have estab-
lished the doctrine of Proculus as
the rule, for in the case of a Latinus
Junianus bequeathed by vindica-
tion to a colony (juristic person),
he said, *The senate must deliberate
whether they wish to become pro-
prietors just as if the bequest was
to a natural person.’
§ 196. Only those things are
properly bequeathed by vindication
which are the Quiritarian property
of the testator; things, however,
estimated by weight, number, or
measure, need only be the Quiri-
tarian property of the testator at
the time of his death, for instance,
wine, oil, corn, ready-money : other
things are required to be the tes-
tator's Quiritarian property at both
periods, both at the time of his
death and at the time of making
his will, or the legacy is void.
$ 197. However, this is only the
civil law. In later times, on the
proposition of Nero, a senatuscon-
sult was passed, providing that if a
testator bequeathed a thing which
never belonged to him, the bequest
should be as valid as if it were
made in the most favourable form ;
the most favourable form being by
condemnation, whereby the property
of another person may be be-
queathed, as will presently appear.
§ 198. If a man bequeath a thing
belonging to him, and afterwards
aliene it, most jurists agree that the
bequest is not only avoided at civil
law, but recovers no validity by the
senatusconsult, because, even when
a thing is bequeathed by condemna-
tion and afterwards aliened, al-
though the contention of a nght by
the suing legatee is valid, it is gene-
11. §§ 191-223. ]
tamen legatarium petentem posse
per exceptionem doli mali repelli,
quasi contra uoluntatem defuncti
petat.
$199. Illud constat, si duobus
pluribusue per uindicationem eadem
res legata sit, siue coniunctim siue
disiunctim, et omnes ueniant ad
legatum, partes ad singulos perti-
nere et deficientis portionem col-
legatario adcrescere. coniunctim
autem ita legatur TITIO ET 8EIO
HOMINEM STICHVM DO LEGO; dis-
lunctin ita L. TITIO HOMINEM
STICHYM DO LEGO. 8EIO EVNDEM
HOMINEM DO LEGO.
$ 200. Illud quaeritur, quod sub
condicione per uindicationem lega-
tum est, pendente condicione cuius
sit, nostri praeceptóres heredis
esse putant exemplo statuliberi, id
est eius serui qui testamento sub
aliqua condicione liber esse iussus
est; quem constat interea heredis
seruum esse. sed diuersae scholae
auctores putant nullius interim eam
rem esse ; quod multo magis dicunt
de eo quod [sine condicione] pure
legatum est, antequam legatarius
admittat legatum.
$ 201. Per damnationem hoc
modo legamus HERES MEVS STICHVM
SERVVM MEVM DARE DAMNAS ESTO;
sed et si DATO scriptum fuerit, per
damnationem legatum est.
$ 202. Eoque genere legati etiam
aliena res legari potest, tta ut heres
redimere (rem) et praestare aut
aestimationem eius dare debeat.
$203. Ea quoque res quae in
rerum natura non est, si modo fu-
tura est, per damnationem legari
potest, uelut. FRVCTVS QVI IN ILLO
FYVNDO NATI ERVNT, aut QVOD EX
ILLA ANCILLA NATYM ERIT.
DE LEGATIS,
255.
rally agreed that his claim is coun-
terpoised by the plea of fraud, as
contravening the testator'sintention.
$ 199. Tt is & settled rule, that if
the same thing be bequeathed by
vindication to two or more persons,
whether jointly [in the same sen-
tence] or severally [in different
sentences], and all claim the legacy,
each is only entitled to a ratable
part, but à lapsed portion accrues
to the colegatees. A joint bequest
is as follows: ‘To Titius and Seius
I give and bequeath my slave Sti-
chus;' a several bequest as fol-
lows: * To Lucius Titius I give
and bequeath my slave Stichus.
To Seius I give and bequeath the
same slave.’
$ 200. When a condition is an-
nexed to & bequest by vindication,
it is & question who, pending the
condition, is the owner: my school
say, the heir, as in the case of the
slave conditionally enfranchised by
will, who is admittedly in the in-
terim the property of the heir:
the other school assert that there is
no interim proprietor, and they in-
sist still more strongly that this is
so in the case of an unconditiona]
gimple bequest beforethe acceptance
by the legatee.
$ 201. A legacy by condemna-
tion is in the following form: ‘ Be
my heir condemned to give my
slave Stichus, or simply, ‘ Let my
heir give my slave Stichus.’
§ 202. By this form a testator
may bequeath a thing belonging to
another person, binding the heir to
purchase and deliver the specific
thing, or pay its value.
§ 203. A thing which does not
exist but will exist may be be-
queathed by condemnation, as the
produce of such and such land, or
the child of such and such female
slave.
256
§ 204. Quod autem ita legatum
est, post aditam hereditatem, etiamsi
pure legatum est, non, ut per uin-
dicationem Jegatum, continuo lega-
tario adquiritur, sed nihilo minus
heredis est. et ideo legatarius in
personam agere debet, id est inten-
dere heredem sibi dare oportere ;
et tum heres, si (res) mancipti sit,
mancipio dare aut in iure cedere
possessionemque tradere debet; si
neo mancipii sit, sufficit si tradi-
derit. nam si mancipiü rem tantum
tradiderit nec mancipauerit, usuca-
pione pleno iure fit legatarü; con-
pletur autem usucapio, sicut alio
quoque loco diximus, mobilium qui-
dem rerum anno, earum uero quae
solo tenentur, biennio.
$ 205. Est et illa differentia
huius (et) per uindicationem le-
gati, quod si eadem res duobus
pluribusue per damnationem legata
git, siquidem coniunctim, plane sin-
gulis partes debentur, sicut in illo
. (quod. per) uindicationem legatum
est, st wero disiunctim, singulis
solidum debetur. ita fit, ut scilicet
heres alteri rem, alteri aestima-
tionem eius praestare debeat. et
in coniunctis deficientis portio non
ad collegatarium pertinet, sed in
hereditate remanet.
$ 206. Quod autem diximus de-
fieientis portionem im per damna-
tionem quidem legato in hereditate
retineri, in per uindicationem uero
collegatario adcrescere, admonendi
sumus ante legem Papiam hoc iure
ciuili ita fuisse; post legem uero
Papiam deficientis portio caduca fit
et ad eos pertinet qui in eo testa-
mento liberos habent.
$ 207. Et quamuis prima causa
DE RERUM UNIVERSITATIBUS. (m.$$191-223.
$ 204. Bequests in this form,
even though no condition is an-
nexed, unlike bequests by vindi-
cation, are not forthwith on the
&cceptance of the succession the
property of the legatee, but continue
the property of the heir, and the
legatee must sue for them by per-
sonal action, that is, declare that
the heir is bound to convey, and
the beir, if the thing 1s mancipable,
must convey it by mancipation or
default in a fictitious vindication
and livery of seisin; if not manci-
pable, by mere delivery of pos-
session: for if a mancipable thing
is merely delivered without man-
cipation, the legatee must acquire
plenary dominion by usucapion, and
usucapion, as before mentioned,
in the case of movables requires
a years possession, in the case
of immovables two years’ posses-
sion.
§ 205. There is another difference
between bequest by vindication and
bequest by condemnation herein,
that if the same thing is bequeathed
to two or more by condemnation,
if they are named jointly, each is
entitled to a ratable part, as in
legacy by vindication ; if severally,
each is entitled to the whole, and
the heir is bound to convey the
specific thing to one, and the value
to the other; and in a joint be-
quest a lapsed portion does not
accrue to the colegatee, but belongs
to the heir.
§ 206. The statement that a
lapsed portion in legacy by con-
demnation falls to the heir, and in
legacy by vindication accrues to the
colegatee, be it observed, gives the
rule of the civil law before the lex
Papia; but since the lex Papia,
a lapsed portion becomes caducous,
and belongs to the devisees who
have children.
§ 207. And although the first
r1. $$ 191-223. ]
sit in caducis uindicandis heredum
liberos habentium, deinde si heredes
liberos non habeant, legatariorum
liberos habentium, tamen ipsa lege
Papia significatur, ut, collegatarius
contunctus, ai liberos habeat, potior
sit heredibus, etiamsi liberos habe-
bunt.
§ 208. Sed plerisque placuit,
quantum ad hoc ius quod lege
Papia coniunctis constituitar, nihil
interesse, utrum per uindicationem
an per damnationem legatum sit.
$ 209. Sinendi modo ita legamus
HERES MEVS DAMNAS ESTO SINERE
L. TITIVM HOMINEM 8TICHVM 8V-
MERE SIBIQVE HABERE.
$210. Quod genus legati plus
quidem habet (quam) per uindica-
tionem legatum, minus autem quam
per damnafionem. nam eo modo
non solum suam rem testator uti-
liter legare potest, sed etiam here-
dis sui; cum alioquin per uindica-
lionem nisi suam rem legare non
potest, per damnationem autem
cuiuslibet extranei rem legare po-
test.
$ 211. Sed siquidem mortis tes-
tatoris tempore res uel ipeius testa-
toris sit uel heredis, plane utile
legatum est, etiamsi testamenti
faciendi tempore neutrius fuerit.
$ 212. Quodsi post mortem tes-
tatoris ea res heredis esse coeperit,
quaeritur an utile sit legatum. et
plerique putant inutile esse. quid
ergo est? licet aliquis eam rem
legauerit quae neque eius umquam
fuerit neque postes heredis eius
umquam esse coeperit, ex senatus-
consulto Neroniano proinde uide-
tur, ac si per damnationem relicta
esset.
$ 213. Sicut autem per damna-
tionem legata res non statim post
DE LEGATIS.
257
title to a caducous legacy is that of
heirs with children, and the second,
if the heirs are childless, of legatees
with children, yet the lex Papia
itself declares that in a joint
bequest a co-legatee with children
is to be preferred to heirs with
children.
$ 208. And it is generally agreed
that as to the rights which the lex
Papia gives to joint legatees, it
makes no difference whether the
bequest is by vindication or by
condemnation.
§ 209. A bequest by permission
is in the following form: ‘Be my
heir condemned to permit Lucius
Titius to take and to have to him-
self my slave Stichus.’
$210. A bequest in this form has
more latitude than one in the form
of vindication, but less than one in
the form of condemnation, for here-
by not only can the testator's prc-
perty be effectively bequeathed, but
also that of the heir, whereas by
the form of vindication the testa-
tor can only bequeath his own pro-
perty, and by the form of condem-
nation he can bequeath the property
of any stranger.
§ 211. If at the time of the
testator’s death a thing belong to
the testator or the heir, the bequest
is valid, even though at the time
of making the will it belonged to
neither.
§ 212. If it first belong to the
heir after the death of the testator
it is a question whether the bequest
is valid, and it is generally held to
be invalid. However, even though
a thing bequeathed never belonged
either to the testator or to the heir,
by the senatusconsult of Nero all
bequests are put on the same foot-
ing as a bequest by condemnation.
§ 213. Just asa thing bequeathed
by condemnation does not immedi+
258
aditam hereditatem legatarti effici-
tur, sed manet heredis eo usque,
donec is [heres] tradendo uel man-
cipando uel in iure cedendo legatarzi
eam fecerit, ita et in sinendi modo
legato iuris est ; et ideo huius quo-
que legati nomine in personam actio
est QVIDQVID HEREDEM EX TESTA-
MENTO DARE FACERE OPORTET.
$ 214. Sunt tamen qui putant ex
hoc legato non uideri obligatum
heredem, ut mancipet aut in iure
cedat aut tradat, sed sufficere ut
legatarium rem sumere patiatur;
quia nihil ultra ei testator imper-
auit, quam uf sinat, id est patiatur,
legatarium rem sibi habere.
$215. Maior illa dissensio in hoc
legato interuenit, si eandem rem
duobus pluribusue disiunctim le-
gasti; quidam putant utrisque
solidam deberi, [sicut per uindica-
tionem ;] nonnulli occupantis esse
meliorem condicionem aestimant,
quia cum eo genere legati damnetur
heres patientiam praestare, ut lega-
tarius rem habeat, sequitur, ut si
priori patientiam praestiterit et is
rem sumpserit, securus sit aduersus
eum qui postea legatum petierit,
quia neque habet rem, ut patiatur
eam ab eo sumi, neque dolo malo
fecit quominus eam rem haberet.
$ 216. Per praeceptionem hoc
modo legamus L. TITIVS HOMINEM
STICHVM PRAECIPITO.
$ 217. Sed nostri quidem prae-
ceptores nulli alti eo modo legari
posse putant, nisi ei qui aliqua ex
parte heres scriptus esset; praeci-
pere enim esse praecipuum sumere ;
quod tantum in eius persona pro-
cedit qui aliqua ex parte herés in-
atitutus est, quod is extra portionem
DE RERUM UNIVERSITATIBUS. [1.$$191-223.
ately on the acceptance of the suc-
cession belong to the legatee, but
continues to belong to the heir un-
til by delivery, or mancipation, or
default in a fictitious vindication,
he makes it the property of the
legatee; so it happens in bequest
by permission, and accordingly this
form of bequest is ground to sup-
port a personal action in the terms:
“Whatever the heir is bound by the
will to convey or perform.’
§ 214. Although some hold that
a bequest in this form does not bind
the heir to mancipate or cede by
fictitious action, or deliver, but is
satisfied by the legatee being per-
mitted to take the thing, as the
testator only enjoined the heir to
let him have it.
§ 215. A more serious question
arises in another point respecting
this form of bequest: if the same
thing is bequeathed severally to two
or more, some hold that each is
entitled to the whole, as in bequest
by vindication; others hold that
the first occupant is alone entitled,
because as this form of bequest only
condemns the heir to suffer the
legatee to have the thing, as soon
as the first occupant has been suf-
fered to take it, the heir is safe
against any subsequent claimant, as
he neither has possession of the
thing, so as to let it again be taken,
nor has fraudulently parted with
possession,
$ 216. A bequest by preception
is in the following form: ‘ Let
Lucius Titius take my slave Stichus
by preception [before partition ].'
$ 217. My school hold tbat such
& bequest can only be made to one
of several coheirs, because precep-
tion, or previous taking, can only be
attributed to a person who, taking
as heir, over and above his por-
tion as heir, and before partition of
the inheritance between the coheirs,
n. $$191-223.]
hereditatis praecipuum legatum ha-
biturus sit.
$218. Ideoque si extraneo lega-
tum fuerit, inutile est legatum ; adeo
ut Sabinus existimauerit ne quidem
ex (senatus)consulto Neroniano
posse conualescere: nam eo, inquit,
senatusconsulto ea tantum confir-
mantur quae uerborum uitio iure
ciuili non ualent, non quae propter
ipsam personam legatari non de-
berentur. sed Iuliano et Sexto
placuit etiam hoc casu ex senatus-
consulto confirmari legatum; nam
ex uerbis etiam hoc casu accidere,
ut iure ciuili inutile sit legatum,
inde manifestum esse, quod eidem
altis uerbis recte legatur, ueluti per
uindicationem, per damnationem,
sinendi modo; tunc autem uitio
personae legatum non ualere, cum
ei legatum sit, cui nullo modo legari
possit, uelut peregrino, cum quo
testamenti factio non sit; quo
plane casu senatusconsulto locus
non est.
$ 219. Item nostri praeceptores
quod ita legntum est nulla (alia)
ratione putant posse consequi eum
cui ita fuerit legatum, quam iudicio
familiae erciscundae, quod inter
heredes de hereditate erciscunda,
id est diuidunda, accipi solet; officio
enim iudicis id contineri, ut ei quod
per praeceptionem legatum est, ad-
iudicetur. "
$220. Vnde intellegimus nihil
aliud secundum nostrorum praecep-
torum opinionem per praeceptionem
legari posse nisi quod testatoris sit ;
nulla enim alia res quam hereditaria
deducitur in hoc iudicium. itaque
$i non suam rem eo modo testator
legauerit, iure quidem ciuili inutile
erit legatum ; sed ex senatuscon-
sulto confirmabitur. aliquo tamen
casu etiam alienam rem ( per) prae-
ceptionem legari posse fatentur;
ueluti si quis eam rem legauerit
quam creditori fiduciae causa man-
DE LEGATIS.
259
takes something as legatee.
$ 218. Therefore, if a stranger
have a legacy in this form it is void,
and Sabinus held that the flaw is
not remedied by the senatusconsult
of Nero, for that senatusconsult
only cures verbal flaws which make
a bequest informa] at civil law, not
personal disabilities of the legatee.
Julian, however, and Sextus held
that this bequest also is made valid
by the senatusconsult, as only being
avoided at civil law by a verbal
informality, as appears from the
fact that the very same person
might take by a bequest in another
form, for instance, the form of per-
mission, whereas personal disability
of a legatee implies inability to
take under any form, as that of an
alien, who wants testamentifactio
passiva, and is not relieved by the
senatusconsult.
§ 219. Again, my school hold
that in this form of bequest, the
only action by which a legatee can
recover is the action for partition of
an inheritance, the judge's commis-
sion including a power of adjudi-
cating a thing bequeathed by pre-
ception.
§ 220. From this it follows that,
according to my school, nothing can
be bequeathed by preception but
what belongs to the testator, for
nothing but the inheritance forms
the subject of this action. If, then,
a thing that does not belong to the
testator is bequeathed in this form,
the bequest is void at civil law, but
made valid by the senatusconsult.
In one case they admit that another
person’s property may be bequeathed
by preception, for instance, if a man
bequeath a thing which he has con-
8 2
260
cipio dederit; nam officio iudicis
coheredes cogi posse existimant so-
luta pecunia juere eam rem, ut
possit praecipere ts cui ita legatum
git.
$ 221. Sed diuersae scholae auc-
tores putant etiam extraneo per
praeceptionem legari posse proinde
ac Si ita scribatur TITIVS HOMINEM
STICHVM CAPITO, superuacuo adiecta
PRAE syllaba ; ideoque per uindica-
tionem eam rem legatam uideri.
quae sententia dicitur diui Hadriani
constitutione confirmata esse.
$ 222. Secundum hanc igitur
opinionem si ea res ex iure Quiri-
tium defuncti fuerit, potest a lega-—
tario uindicari, siue is unus ex
heredibus git siue extraneus; quodsi
in bonis tantum testatoris fuerit,
extruneo quidem ex senatusconsulto
utile erit legatum, heredi uero fa-
miliae erciscundae (iudicis officio
praestabitur ; quodsi nullo iure
fuerit testatoris, tam heredi quam
extraneo ex senatusconsulto utile
erit.
$ 223. Siue tamen heredibus se-
cundum nostrorum opinionem, siue
eliam extraneis secundum illorum
opinionem, duobus pluribusue eadem
res coniunctim aut disiunctim legata
fuerit, singuli partes habere debent.
DE RERUM UNIVERSITATIBUS. [11. §§ 191-223.
veyed by fiduciary mancipation to a
mortgagee, as itis within the powers
of the judge to order the coheirs to
redeem the property by payment of
ihe mortgage debt, and thus enable
the legatee to exercise his right of
preception.
§ 221. The other school hold that
a stranger may take a bequest in
the form of preception just as if it
were in the form: ‘ Let Titius take
my slave Stichus, the addition [by
preception, or, before partition | be-
ing mere surplusage,and the bequest
being in effect in the form of vindi-
cation; and this opinion is said to
be confirmed by a constitution of
the late emperor Hadrian.
$ 222. According to this view, if
the thing was the Quiritarian pro-
perty of the defunct, it can be
recovered in a real action by the
legatee, whether an heir or a stran-
ger, but if it was only the boni-
tarian property of the testator, a
stranger will recover the bequest
under the senatusconsult, an heir
by the authority of the judge in an
action for partition of inheritance.
If it was in no sense the property
of the testator, either an heir or a
stranger may recover it under the
senatusconsult.
§ 223. Whether heirs, according
to my school, or strangers, accord-
ing to the other, if two or more
legatees have the same thing be-
queathed to them jointly or sever-
ally, each legatee is only entitled
to a ratable portion.
§ 195. The testamentifactio passiva of municipalities, that is,
their capacity as juristic persons to be made heirs or legatees, has
already been noticed, 1 § 197—200, comm.
§ 238, comm.
§ 197. Senatusconsulto Neroniano cautum est ut quod minus
pactis (aptis?) verbis legatum est perinde sit acsi optimo jure
legatum esset: optimum autem jus legati per damnationem est,
Ulpian, 24,11. ‘The senatusconsult of Nero provided that every
1. §§ 191-223.] DE LEGATIS. 261
inaptly worded bequest should be deemed to be expressed in the
most favourable form: the most favourable form being by con-
demnation."
By this senatusconsult, A.D. 64, the four forms of legacy are not
entirely abolished, but the importance of their distinctions is very
much diminished. A legacy, by whatever form bequeathed, is
heneeforth always recoverable, provided it could have been effec-
tively bequeathed in any form. As Sc. Neronianum made Vin-
dicatio transformable into Condemnatio, it made Praeceptio a
species of Vindicatio, similarly transformable, and capable, there-
fore, of conferring res aliena as well as res testatoris not only on
heres but also on non-heres. A fortiori it made Permissio, a
species of Condemnatio, capable of bequeathing res aliena.
Subsequently a constitution of Constantine, Constantius, and
Constans, A.D. 389, which, as we have already seen, abolished the
necessity of sacramental terms in instituting an heir, dispensed
with them also in the remaining testamentary dispositions: Et in
postremis ergo judiciis ordinandis amota erit sollennium verborum
necessitas, Cod. 6, 23, 15. In legatis vel fidei commissis neces-
saria non sit verborum observantia, ita ut nihil prorsus intersit,
quis talem voluntatem verborum casus exceperit aut quis loquendi
usus effuderit, Cod. 6, 37, 21. * Legacies and trusts need no verbal
formulas, and it is utterly immaterial, given the intention, in what
grammatical form it is clothed, or in what idiom it is enounced :’
apparently a part of the same constitution.
Three years afterwards, a constitution of Constantius and Con-
stans abolished all legal formulas in the following terms: Juris
formulae, aucupatione syllabarum insidiantes, cunctorum actibus
penitus amputentur, Cod. 2, 58, 1. * Legal formulas, with snares
in every syllable to make them treacherous, in every occasion are
to be utterly abolished.'
Finally, Justinian enacted ut omnibus legatis una sit natura,
Inst. 2, 20, 2, that all bequeste should be of one nature; and
allowed them to be recovered by personal or real action, at the
option of the legatee; or, perhaps we should say, according to the
exigencies of the case: for some subjects are essentially incapable of
recovery by real action; e.g. if a determinate quantity of anything
estimated by number, measure, or weight, were bequeathed by a
testator who had none in his possession at the time of his death,
the heir would be bound to procure and convey it or its value to the
262 DE RERUM UNIVERSITATIBUS. [1 §§ 191-223.
legatee, but there would be no specific thing in existence which the
legatee could recover by real action.
§ 199. Co-vindieatees would be each entitled to the whole except
for the concurrence of the other co-legatees. Accordingly, if one
fails the others benefit by Accretio. Co-damnatees in the same
sentence are never entitled to more than a ratable portion, and
failure of one benefits the heir: co-damnatees in separate sentences
are entitled to as many wholes as there are co-legatees, $ 206.
Co-permissees were a class of co-damnatees, but in disjunctive
permission only the first occupant was entitled, $ 215.
§ 207. The loss of the legacies which they otherwise would have
acquired under the lex Papia, was one of the penalties whereby the
legislator endeavoured to deter successors and legatees from under-
taking secret trusts (fideicommissum tacitum) contrived for the
purpose of evading some disqualification. In fraudem juris fidem
accommodat, qui vel id quod relinquitur vel aliud tacite promittit
restituturum se personae quae legibus ex testamento capere pro-
hibetur, sive chirographum eo nomine dederit, sive nuda polli-
citatione repromiserit, D. 84, 9, 10 (from a treatise of Gaius on the
lex Julia et Papia). ‘A devisee lends his honour to the evasion of
the law when, without a direction on the face of the will, he en-
gages to transfer a devise or other property to some person legally
disqualified for taking under a will, whether the engagement be by
formal written contract or by naked verbal promise) In England
secret trusts led to the passing of the statute of Uses and Trusts.
At Rome secret trusts (on which Gaius wrote & treatise, D. 84, 9,
23) were discouraged by being made one of the cases of Ereption
for unworthiness, § 151. Si quis in fraudem tacitam fidem ac-
commodaverit, ut non capienti fideicommissum restituat, nec
quadrantem eum deducere senatus censuit, nec caducum vindicare
ex eo testamento si liberos habeat, Ulpian, 25,17. ‘An heir who
lends his assistance to the evasion of the law by the acceptance of
a secret trust in favour of a disqualified beneficiary loses by decree
of the senate his right under the lex Falcidia to retain one fourth
of his inheritance, and to claim the escheated legacies, to which
by the lex Papia he would have been entitled as a father of
children.’ "
§ 215. A passage in the Digest, 33, 2, 14, makes this depend
on the intention of the testator.
11. §§ 224-228. ]
[AD LEGEM
$ 224. Sed olim quidem licebat
lotum patrimonium legatis atque
libertatibus erogare nec quicquam
heredi relinquere praeterquaminane
nomen heredis; idque lex xii tabu-
larum permittere uidebatur, qua ca-
uetur, ut quod quisque de re sua
testatus esset, id ratum haberetur,
his uerbis YTI LEGASSIT SVAE BEI,
ITA IVS ESTO. quare qui scripti
heredes erant, ab hereditate se ab-
stinebant, et idcirco plerique intes-
tati moriebantur.
$ 225. Itaque lata est lex Furia,
qua, exceptis personis quibusdam,
ceteris plus mille assibus legatorum
nomine mortisue causa capere per-
missum non est. sed et haec lex non
perfecit quod uoluit; qui enim uerbi
gratia quinque milium aeris patri-
monium habebst, poterat quinque
hominibus singulis millenos asses
legando totum patrimonium ero-
gare.
$226. Ideo postea lata est lex
Voconia, qua cautum est, ne cui
plus legatorum nomine mortisue
causa capere liceret quam heredes
caperent. ex qua lege plane quidem
aliquid utique heredes habere uide-
bantur; sed tamen fere uitium si-
mile nascebatur; nam in multas
legatariorum personas distributo
patrimonio poterat (testator) adeo
heredi minimum relinquere, ut non
expediret heredi huius lucri gratia
totius hereditatis onera sustinere.
$ 227. Lata est itaque lex Fal-
cidia, qua cautum est, ne plus ei
legare liceat quam dodrantem. ita-
que necesse est, ut heres quartam
partem hereditatis habeat. et hoc
nunc iure utimur.
$ 228. In libertatibus quoque
AD LEGEM FALCIDIAM.
263
FALCIDIAM. |
$ 224. By the ancient law a tes-
tator might exhaust his whole es-
tate by bequests and enfranchise-
ments, and leave nothing to the
heir but an empty title; and
this privilege seemed granted by
the Twelve Tables, which concede
an unlimited power of testamentary
disposition, in these terms: ‘A
man's last directions respecting his
property shall be enforced by the
power of the state:' hence the per-
Bons who were appointed heirs de-
clined to accept the inheritance, and
people commonly died intestate.
$ 225. This led to the enactment
of the lex Furia, whereby, excepting
certain specified classes, a thousand
asses was made the maximum that
a legatee or donee in contempla-
tion of death was permitted to
take. This law, however, failed to
accomplish its purpose, for a testa-
tor with an estate of, say, five thou-
sand asses, might leave to five le-
gatees a thousand asses apiece, and
strip the heir of the whole.
§ 226. This occasioned the en-
actment of the lex Voconia, provid-
ing that no legatee or donee on
condition of survivorship should
take more than the heir. By this
law, some portion at all events was
secured to the heir, but, like the
former, it could be defeated, for the
multitude of legatees between whom
a man distributed his estate might
leave so little to the heir as to make
it not worth his while to undertake
the whole burden of the succession.
$ 227. At last, the lex Falcidia
was enacted, prohibiting the bequest
of more than three fourths of an
estate, in other words, securing for
the heir one fourth of the inherit-
ance, and this is the rule of law
now in force.
§ 228. The enfranchisement of
264 DE RERUM UNIVERSITATIBUS. [x §§ 224-228.
dandis nimiam licentiam conpescuit slaves was likewise kept within
lex Fufia Caninia, sicut in primo limits by the lex Furia Caninia, as
commentario rettulimus. mentioned in the first volume of
these Institutions.
§ 224. A slightly different form of this celebrated ordinance is
given by the Auctor ad Herennium : Paterfamilias yti super familia
pecuniave sua legaverit ita jus esto, 1, 18, 28; also Cic. de Invent.
2, 50, 148.
§ 225. The lex Furia testamentaria, supposed to,have been
passed 183 s.c., although it imposed on the legatee who took more
than a thousand asses a penalty of four times the amount of the
excess, which was recoverable by manus injectio pura, 4 § 23, yet is
instanced by Ulpian as & minus quam perfecta lex, because, though
it imposed a penalty on the legatee, it did not invalidate the pro-
hibited bequest. In a minus quam perfecta lex the legislator,
instead of declaring invalid the disposition that he wished to dis-
eourage, or conferring on the person burdened by such disposition
a counter right (exceptio) whereby he might defeat the claim of
the person who sought to enforce such disposition, merely imposed
on the creditor under such a disposition a penalty if he either
enforced his claim by suit or if he even accepted voluntary pay-
ment from the person who stood in the relation of debtor. Minus
quam perfecta lex est quae vetat aliquid fieri et si factum sit non
rescindit sed poenam injungit ei qui contra legem fecit: qualis
est lex Furia testamentaria quae plus quam mille assium legatum
mortisve causa prohibet capere praeter exceptas personas, et ad-
versus eum qui plus ceperit quadrupli poenam constituit, Ulpian,
1, 2. So the lex Furia de sponsu, 3 $ 121, which perhaps was
another clause of the enactment which contained the lex Furia
testamentaria, imposed a penalty on the creditor who exacted more
than a ratable portion of a guaranteed debt from a single sponsor,
4§ 22. By the lex Falcidia, on the contrary, a lex perfecta which
superseded the lex Furia testamentaria, a legacy was absolutely
null and void (ipso jure) beyond a certain extent and the heres as
debtor could not be forced to pay more than the sum prescribed,
a rule which may be expressed by the maxim, legata ipso jure
minuuntur: and the Epistola Hadriani, 8 $ 121, which similarly
superseded the lex Furia de sponsu, conferred a counter right
called Beneficium divisionis on the fidejussor or surety who was
sued for more than a ratable portion of the debt, enabling him
11. $$ 224-228. | AD LEGEM FALCIDIAM. . 265
to defeat the valid claim of the creditor by the exceptio divi-
sionis. Under the lex Furia testamentaria the heres could neither
defend himself by alleging the absolute nullity of the exces-
sve bequest (ipso jure) nor by alleging an opposing right
(exceptio) whereby the valid claim of the legatee might be counter-
acted. 4 § 115, comm.
Assuming that the lex Furia de sponsu and the lex Furia tes-
tamentaria were two clauses of the same enactment, the lex Furia
has had the singular destiny of having provoked by antagonism
the introduction of two new institutions in Roman jurisprudence.
The desire of evading its penalties relating to sponsio probably
was the origin of fidejussio; and the desire of evading its penalties
relating to legata was probably a principal stimulus to the in-
vention of fideicommissa. Ihering.
The exceptae personae of the lex Furia testamentaria were the
cognates of that ascendent by whom the testator, when filius-
familias, had been emancipated, Ulpian, 28, 7.
$ 226. 'The lex Voconia, supposed to have been passed by the
tnbune Quintus Voconius Saxa, 169 B.c., contained & provision
to the effect that a woman could not be instituted heiress to a
clasaicus, or person scheduled in the first class of the census,
i.e. registered as owner of property to the amount of a hundred
thousand sesterces and upward, 2 $274; and another, mentioned
in the text, whereby the utmost amount that any one, male or
female, could take as legatee, would be limited to half the value of
the inheritance. This disposition of the lex Voconia was probably
the origin of the form of legacy called partitio, § 254, whereby
a testator bequeathed as legacy an aliquot part of his inheritance.
A testator with one heres would leave to a female legatee one half,
with two heredes one third, of the inheritance, and so on, if he
wished to leave her the utmost the law permitted.
The result of the lex Voconia, coupled with the rules of preter-
mission and intestacy, is the following: a daughter might take half
her father's estate either as legatee (partiaria, $ 254) or, if preter-
mitted (praeterita) as heiress, $ 124.. If she was filia unica, she
might take the whole estate as heiress, if her father died intestate :
but Romans were very averse to dying intestate; and in this event
she would not have the free disposition of her property, as she
would be the ward of her agmates.
$ 227. The terms of the principal clause of the lex Falcidia,
266 DE RERUM UNIVERSITATIBUS. (11. $$ 229-245.
passed B.c. 40, are given in the Digest 35, 2, 1, pr. ‘Every Roman
citizen who, after this law passes, makes a will, is entitled and
empowered to give and bequeath whatever money to whatever
citizen of Rome he desires in accordance with the laws of Rome,
provided that such bequest leave at least one fourth of the inherit-
ance to be taken under that will by the heirs. Such bequests the
legatees are permitted to accept without penalty (an allusion to the
penalty of the lex Furia), and the heir therewith charged is bound
to pay.’ |
. The words limiting the operation of the lex Falcidia to wills
executed after the date of its enactment take this law out of the
general rule respecting the temporal limits of the application of
laws in the event of legislative innovations. The general rule for
determining, on any change of the law, whether a given right is to
be governed by the older or the newer law, is the principle that a
new law has no retroactive influence on vested rights (acquired
rights), but governs all that have yet to vest. Now under a will no
one has vested rights, whatever his expectations, before the death of
the testator. This date fixes the overture of the succession (vocatio
heredis, delatio hereditatis), the vesting of the rights of the successor
and also of the legatee (legatorum dies cedens, § 244), and deter-
mines the law by which they are governed. By the general rule,
then, the lex Falcidia would have applied to all wills whose testators
died after its enactment, at whatever date they were executed.
The legislator wished to disarm the opposition of those who had
made their wills by excepting them from its operation; though in
many cases the lex Falcidia would be less rigorous than the lex Furia
and lex Voconia, which it superseded, and testators would be glad
to revise their testamentary dispositions. Savigny, System, § 394.
Some illustrations of the joint operation of the lex Falcidia and
the Sc. Pegasianum, or rather the Sc: Trebellianum as modified by
Justinian, will be presently given. § 259, comm.
[DE INVTILITER RELICTIS LEGATIS. |
. $229. Ante heredis institutionem $ 229. A legacy bequeathed be-
inutihter legatur, scilicet quia tes- fore a successor is appointed is void,
tamenta uim ex institutione heredis because a will derives its operation
accipiunt, et ob id uelut caput et from the appointment of a suc-
fundamentumintellegitur totius tes- cessor, and accordingly the appoint-
tamenti heredis institutio. ment of & successor is deemed the
beginning and foundation of a will.
n$$229-245.] DE INUTILITER RELICTIS LEGATIS. 267
$230. Pari ratione nec libertas
ante heredis institutionem dari
potest.
$231. Nostri praeceptores nec
tutorem eo loco dari posse existi-
mani; sed Labeo et Proculus tu-
torem posse dari, quod nihil ex
hereditate erogatur tutoris datione.
$ 232. Post mortem quoque he-
redis inutiliter legatur, id est hoc
modo CVM HERES MEVS MORTYVS
ERIT, DO LEGO, aut DATO. ita au-
tem recte legatur CVM HERES
(MEVS) MORIETVE, quia non post
mortem heredis relinquitur, sed
ultimo uitae eius tempore. rursum
ita non potest legari PRIDIE QVAM
HERES MEVS MORIETVR; quod non
pretiosa ratione receptum uidetur.
$233. Eadem et de libertatibus
dicta intellegemus.
$234. Tutor uero an post mortem
heredis dari possit quaerentibus
eadem forsitam poterit esse quaes-
tio, quae de (eo) agitatur qui ante
heredum institutionem datur.
DE POENAE CAVSA
$ 235. Poense quoque nomine
inutiliter legatur. poenae autem
nomine legari uidetur quod co-
ercendi heredis causa relinquitur,
quo magis heres aliquid faciat aut
non faciat ; ueluti quod ita legatur
SI HERES MEVS FILIAM SVAM TITIO
IN MATRIMONIVM CONLOCAVEBIT, X
(XILIA) 8£10 DATO, uel ita 81 FI-
LIAM TITIO IN MATRIMONIVM NON
CONLOCAVERIS, X MILIA TITIO DATO;
sed et si heredem, (si) uerbi gratia
intra biennium monumentum sibi
non fecerit, € (milia) Titio dare
$ 230. For the same reason a
slave cannot be enfranchised before
& successor is appointed.
$ 231. Nor, according to my
school, can a guardian be nomin-
ated before an heir is appointed :
according to Labeo and Proculus he
may, because no part of the inherit-
ance is diverted from the heir by
the nomination of a guardian.
§ 232. A bequest to take effect
after the death of the heir is void,
that is to say, if limited in the
following terms: ‘ After my suc-
cessor's death I give and dispose,’
or, ‘let my successor give.’ The fol-
lowing limitation is valid: ‘ When
my heir dies,’ because the legacy is
not to take effect after his death,
but at the last moments of his life.
A bequest to take effect on the day
preceding the death of the successor
is void. This distinction reposes on
no valid reason.
§ 233. The same rules apply to
enfranchisements.
§ 234. Whether a guardian can
be nominated to begin his functions
after the death of the heir, probably
admits of the same divergence of
opinion as whether he can be nomi-
nated before the appointment of the
heir.
RELICTIS LEGATIS.
§ 235. Penal bequests are void.
A penal bequest is one intended to
coerce the heir to some performance
or forbearance. For instance, the
following: ‘If my heir give his
daughter in marriage to Titius, let
him pay ten thousand sesterces to
Seius:’ and the following: ‘If thou
do not give thy daughter in marriage
to Titius, do thou pay ten thousand
sesterces to Titius:’ and the follow-
ing: ‘If my heir does not, say,
within two years build me a monu-
ment, I order him to pay ten thou-
268
iusserit, poenae nomine legatum
est; et deni|que ex ipsa definitione
multas similes species —|—possu-
mus.
$ 236. Nec libertas quidem poe-
nae|nomine dari potest, quamuis
de ea re fuerit quaesitum.
$ 237. De tutore uero nihil pos-
sumus quaerere, quia non potest
datione tutoris heres conpelli quic-
quam facere aut non facere ; ideo-
que ( ) datur, poenae nomine
tutor datus fuerit, magis sub con-
dicione quam poenae nomine datus
uidebitur.
§ 238. Incertae personae legatum
inutiliter relinquitur. incerta autem
uidetur persona quam per incertam
opinionem animo suo testator subi-
cit, uelut cum ita legatum sit QVI
PRIMVS AD FVNVS MEVM VENERIT,
EI HERES MEVS X (MILIA) DATO.
idem iuris est si generaliter omni-
bus legauerit QVICVMQVE AD FVNVS
MEVM VENERIT. in eadem causa est
quod ita relinquitur QVICVMQVE
FILIO MEO IN MATRIMONIVM FILIAM
SVAM CONLOCAVERIT, EI HERES
MEVS X MILIA DATO. illud quoque
[in eadem causa est] quod it relin-
quitur QVI POST TESTAMENTVM
(SCRIPTVM PRIMI) CONSVLES DE-
SIGNATI ERVNT, aeque incertis per-
sonis legari uidetur. et denique
aliae multae huiusmodi species sunt.
sub certa uero demonstratione in-
certae personae recte legatur, ue-
luti EX COGNATIS MEIS QVI NYNC
SVNT QVI PRIMYS AD FVNVS MEVM
VENERIT, EI X MILIA HERES MEVS
DATO.
$ 239. Libertas quoque non uide-
tur incertae personae dari posse,
quia lex Fufia Caninia iubet nomi-
natim seruos liberari.
$ 240. Tutor quoque certus dari
debet.
$ 241. Postumo quoque alieno
DE RERUM UNIVERSITATIBUS. [m.$$229-245.
sand sesterces to Titius ;' all these
are penal bequests, and many simi-
lar instances may be imagined in
accordance with the definition.
$ 236. Freedom cannot be left as
& penal bequest, although the point
has been disputed.
$ 237. The nomination of a guar-
dian cannot give rise tothe question,
because thenominationof a guardian
cannot be a means of compelling an
heir to any performance or forbear-
ance, and a penal nomination of a
guardian is inconceivable: if, how-
ever, & nomination were made with
this design, it would be deemed
rather conditional than penal.
§ 238. A bequest to an uncertain
person is void. An uncertain person
is one of whom the testator has no
certain conception, as the legatee in
the following bequest: ‘ Whcever
comes first to my funeral, do thou,
my heir, pay him ten thousand ses-
terces:’ or a whole class thus de-
fined: ‘Whoever comes to my
funeral:’ or a person thus defined:
*Whoever gives his daughter in mar-
riage to my son, do thou, my heir,
pay him ten thousand sesterces:' or
persons thusdefined : ‘Whoeverafter
my willis made are the first consuls
designate:' allthese persons are un-
certain, and many others that might
be instanced. A bequest to an un-
certain member of a certain class is
valid, as the following: ‘Of all my
kindred now alive whoever first
comes to my funeral, do thou, my
heir, pay him ten thousand ses-
terces.'
$ 239. Freedom cannot be be-
queathed to an uncertain person be-
cause the lex Fufia Caninia requires
slaves to be enfranchised by name.
$ 240. Án uncertain person can-
not be nominated guardian.
$ 241. An afterborn stranger can-
u. § 229-245.]| DE POENAE CAUSA LEGATIS.
inutiliter legatur. (st) autem
alienus postumus qui natus inter
suos heredes testatori futurus non
est. ideoque ex emancipato quoque
filio conceptus nepos extraneus pos-
tumus est ; item qui in utero est
eius quae ture ciuili non intellegi-
tur uxor, extraneus postumus patris
intellegitur.
$ 242. Ac ne heres quidem potest
institui postumus alienus; est enim
incerta persona.
$ 243. Cetera uero quae supra
diximus, ad legata proprie pertinent.
quamquam non inmerito quibus-
dam placeat poenae nomine heredem
institui non posse; nihil enim inter-
est, utrum legatum dare iubeatur
heres, si fecerit aliquid aut non
fecerit, an coheres ei adiciatur, quia
tam coheredis adiectione quam le-
gati datione conpellitur, ut aliquid
coutra propositum suum faciat aut
non faciat.
$ 244. An ei qui in potestate
sit eius quem heredem instituimus,
recte legemus quaeritur. Seruius
recte legari putat, sed euanescere
legatum, si quo tempore dies lega-
torum cedere solet, adhuc in potes-
late sit ; ideoque siue pure legatum
ait et uiuo testatore in potestate
heredis esse desierit, siue sub con-
dicione et ante condicionem id acci-
derit, deberi legatum. Sabinus et
Cassius sub condicione recte legari,
pure non recte, putant; licet enim
uiuo testatore possit desinere in po-
testate heredis esse, ideo tamen in-
utile legatum intellegi oportere, quia
quod nullas uires habiturum foret,
st statim post testamentum factum
decessisset, testator, hoc ideo ualere,
quia uitam longius traxerit, absur-
dum esset. sed diuersae scholae
auctores nec sub condicione recte
legari, quia quos in potestate habe-
mus, eis non magis sub condicione
quam pure debere possumus.
269
not take a bequest: an afterborn
stranger is one who on his birth
will not be a self-successor to the
testator: thus & grandson by an
emancipated son is an afterborn
stranger to his grandfather, and a
child in the womb of one who is not
& wife by civil wedlock is an after-
born stranger to his father.
$ 242. An afterborn stranger can-
not even be appointed heir, because
he is an uncertain person.
$ 243. Though what was said
above of penal dispositions refers
properly to bequests, yet a penal
appointment of an heir is justly
considered to be void, for it makes
no difference whether a legacy is
left away from an heir on his doing
or failing to do something, or a co-
heir is appointed, as the addition of
a coheir is just as effective a means
of coercion to force an heir to take
some step against his will.
§ 244. Whether a person in the
power of an heir can be the donee
of a legacy is a question. Servius
holds that the bequest is valid,
though it lapses if he continue
under power at the date when the
legacies vest ; and whether the be-
quest is absolute and the legatee
ceases to be subject to the power of
the heir in the lifetime of the tes-
tator, or whether it is conditional
and he is hberated before the con-
dition is accomplished, in either case
he holds the legatee entitled to the
legacy. Sabinus and Cassius hold
that a conditional bequest is valid,
an absolute bequest invalid, because
though the legatee may cease to be
subject to the heir in the lifetime of
the testator, yet the bequest must
be deemed invalid because a dis-
position which would be void if the
testator died immediately after
making his will, cannot acquire
validity by the mere prolongation
of his life. The other school of
270
$ 245. Ex diuerso constat ab eo
qui in potestate (twa) est, herede
instituto recte tibi legari ; sed si tu
per eum heres extiteris, euanescere
legatum, quia ipse tibi legatum
debere non possis; si uero filius
emancipatus aut seruus manumissus
erit uel in alium translatus, et ipse
heres extiterit aut alium fecerit,
deberi legatum.
DE RERUM UNIVERSITATIBUS. [m.$$ 229-245.
jurists hold that even a conditional
bequest is invalid because a person
under power is as incapable of con-
ditional as of absolute rights against
his superior.
§ 245. Conversely it is certain
that if a person in your power is
appointed heir, he can be charged
with payment of a legacy to you;
though if you inherit by his means
the legacy fails, because you cannot
be bound to pay yourself; but if
your son is emancipated, or your
slave manumitted or aliened, and
himself becomes successor or makes
the alienee successor, you are en-
titled to the legacy.
§ 237. The rules requiring that bequests should follow the insti-
tution of the heir, and should be limited to take effect in the life-
time of the heir, and prohibiting penal bequests, were abolished by
Justinian.
§ 238. Justinian abolished the rule prohibiting bequests to un-
certain persons, Cod. 6, 48. Corporations or Universitates are
certae personae, not incertae as we might imagine from their men-
tion in this constitution. But though, as juristic persons, they
were capable in general of property, yet originally, perhaps from
a feeling of the impolicy of the principle of Mortmain, they were
incapable of taking either hereditas or legatum. Leo, a.p. 469, had
made municipalities capable of taking successions (hereditas), and
probably by the constitutions of Nerva and Hadrian all juristic
persons had become capable of taking bequests (legatum). By
Justinian’s constitution, Cod. 6, 48, other Universitates as well
as Municipalities would become capable of taking successions.
Savigny, § 85. 1 § 197-§ 200, comm.
§ 242. Although an after-born stranger could not be appointed
heir by the civil law, yet the praetor sustained such an appoint-
ment, and gave him the bonorum possessio. Justinian permitted
him to take the legal estate, Inst. 8, 9, pr. After Justinian’s
legislation, Cod. 6, 48, all that remained of the once important
disqualification of incerta persona was the rule, that a succession,
testamentary or intestate, could not belong to a postumus alienus,
unless he was begotten (conceptus) in the lifetime of the heritage-
leaver. Vangerow, § 411, § 429.
11. §§ 246-259.] DE POENAE CAUSA LEGATIS. 271
§ 244. Dies cedens, or the delation of a legacy, dates from the
death of the testator: dies veniens, the acquisition of a legacy,
dates from aditio of the heres. It does not require acceptance or
even notice of the legacy. In reference to obligations these terms
mean the date when an obligation vests and the date when pay-
ment may be exacted. On dies cedens an obligation is acquired :
it forms part of the creditor’s patrimony, and is capable of novation,
cession, acceptilation : on dies veniens or actio nata, payment may
be exacted and is recoverable by suit. The distinction between dies
cedens and dies veniens in obligations arises when & dies adjecta
is contained in the lex contractus.
A nght to a conditional legacy vested when the condition was
accomplished. Herein a conditional legacy differs from a conditional
contract. A fulfilled condition of a contract or promise is retracted
to the date of the promise: i.e. the obligation of the promissor and
the right of the promissee date from the conclusion of the contract
as if it had been originally unconditional. Though an unconditional
legacy was liable to be defeated by the heres declining the inherit-
ance, or the will from any other cause failing of operation, yet, as
soon as the validity of the will was ascertained by the aditio of the
heres, the vesting of an unconditional legacy dated back from the
death of the testator.
One of the Catos was the author of & maxim, that to test the
validity of a legacy we must examine whether it would be valid
if the testator died immediately after executing his will. This
was called regula Catoniana, Dig. 84, 7, 1. The retroactive effect
of the removal of an original impediment to the validity of a title
is called the Convalescence of the title. Accordingly, Cato's rule
may be described as a rule denying the Convalescence of legacies.
Cato's rule, however, was only a criterion of the validity of uncon-
ditional bequests ; the validity of conditional bequests can only be
tested when the condition is aecomplished. Accordingly, of the
three opinions mentioned in this paragraph, that of Sabinus is
to be regarded as sound, and is so treated by Justinian, Inst. 2,
20, 32.
DE FIDEICOMMISSARIIS HEREDITATIBUS.
$246. Nunc transeamus ad fidei- $ 246. We now proceed to trusts.
commissa.
$ 247. Et prius de hereditatibus $ 247. And to begin with trust
uideamus. successions :
272
§ 248. Inprimis igitur sciendum
est opus esse, ut aliquis heres recto
iure instituatur eiusque fidei com-
mittatur, ut eam hereditatem alii
restituat; alioquin inutile est tes-
tamentum, in quo nemo recto iure
heres instituitur.
$ 249. Verba autem [utilia ] fidei-
commissorum haec [recte] maxime
in usu esse uidentur PETO, ROGO,
VOLO, FIDEI COMMITTO ; quae proinde
firma singula sunt, atque si omnia
in unum congesta sint.
$ 250. Cum igitur scripserimus
(L.) TITIVS HERES ESTO, possumus
adicere ROGO TE L. TITI PETOQVE A
TE, VT CVM PRIMVM POSSIS HERE-
DITATEM MEAM ADIBE, C. SEIO RED-
DAS RESTITVAS. possumus autem
et de parte restituenda rogare; et
liberum est uel sub condicione uel
pure relinquere fideicommissa, uel
ex die certa.
$ 251. Restituta autem heredi-
tate is qui restituit nihilo minus
heres permanet ; is uero qui recipit
hereditatem, aliquando heredis loco
est, aliquando legatarii.
$ 252. Olim autem nec heredis
loco erat nec legatarti, sed potius
emptoris. tunc enim in wsu erat
ei cui restituebatur hereditas, num-
mo uno eam hereditatem dicis causa
uenire; et quae stipulationes (tnter
uenditorem hereditatis et emptorem
tnterpont solent, eaedem. interpone-
bantur) inter heredem et eum cui
restituebatur hereditas, id est hoc
modo: heres quidem stipulabatur
&b eo cui restituebatur hereditas,
ut quidquid hereditario nomine
condemnatus soluisset, siue quid
alias bona fide dedisset, eo nomine
indemnis esset, et omnino si quis
cum eo hereditario nomine ageret,
ut recte defenderetur ; ille uero qui
recipiebat hereditatem, inuicem sti-
pulabatur, ut si quid ex hereditate
ad heredem peruenisset, id sibi re-
DE RERUM UNIVERSITATIBUS. [1.$$246-259.
$ 248. The first requisite is a
legal successor in the first instance
in trust to transfer the succession
to another, for the will is void
without a legal successor in the first
instance.
$ 249. The words properly and
commonly used to create a trust
are: ‘I beg, I request, I wish, I
intrust;’ and they are just as bind-
ing separately as united.
$ 250. Accordingly, when we
have written: ‘ Lucius Titius, be
thou my heir,’ we may add: ‘I
request and beg thee, Lucius Titius,
as soon as thou canst accept my
inheritance, to convey and transfer
it to Gaius Seius;’ or we may re-
quest him to transfer a part. Soa
trust may be either conditional or
absolute, and to be performed either
immediately or on a future day.
§ 251. After the transfer of the
inheritance the transferror continues
heir, the transferree being sometimes
quasi heir, sometimes quasi legatee.
§ 252. Formerly he became nei-
ther quasi heir nor quasi legatee
but quasi purchaser. In those times
it was customary for the transferree
to pay a sesterce as fictitious pur-
chaser of the inheritance, and the
stipulations appropriate to a vendor
and purchaser of an inheritance
were entered into by the heir and
transferree, that is to say, the heir
stipulated from the transferree to be
indemnified for any sums he should
be condemned to pay or should in
good faith pay on account of the
inheritance, and to be adequately
defended in any suit on account of
the inheritance; and the transferree
on the other hand stipulated to re-
ceive from the heir all profits aris-
ing from the inheritance and to be
permitted to sue as cognitor or
1.$$246-259.] DE FIDEICOMM. HEREDITATIBUS.
stitueretur, ut etiam pateretur eum
hereditarias actiones procuratorio
aut cognitorio nomine exequi.
$ 253. Sed posterioribus tem-
poribus Trebellio Maximo et Annaeo
Seneca consulibus senatusconsultum
factum est, quo cautum est, ut si cui
hereditas ex fideicommissi causa re-
stituta sit, actiones quae iure ciuili
beredi et in heredem conpeterent,
(ei) et in eum darentur cul ex
fideicommisso restituta esset here-
ditas. per quod senatusconsultum
desierunt illae cautiones in usu ha-
beri praetor enim utiles actiones
ei et in eum qui recepit hereditatem,
quasi heredi et in heredem dare
coepit, eaeque in edicto proponun-
tur
$254. Sed rursus quia heredes
acripti cum aut totam hereditatem
aut paene totam plerumque resti-
tuere rogabantur, adire hereditatem
ob nullum aut minimum lucrum
recusabant, atque ob id extingue-
bantur fideicommissa, postea Pe-
gaso et Pusione (consulibus) sena-
tus censuit, ut ei qui rogatus esset
hereditatem ^ restituere, proinde
liceret. quartam partem retinere,
aique e lege Falcidia in legatis
retinere, conceditur. (ex singulis
quoque rebus quae per fideicom-
missum relincuntur, eadem retentio
permissa est.) per quod senatus-
consultum ipse (heres) onera here-
ditaria sustinet. ille autem qui ex
fideicommisso reliquam partem he-
reditatis recipit, legatarti partiarü
loco est, id est eius legatari cui pars
bonorum legatur; quae species legati
partitio uocatur, quia cum herede
legatarius partitur hereditatem.
unde effectum est, ut quae solent sti-
pulationes inter heredem et partia-
rum legatarium interponi, eaedem
interponantur inter eumqui ex fidei-
commissi causa recipit hereditatem,
et heredem, id est ut et lucrum et
damnum hereditarium pro rata
parte inter eos commune sit.
273
procurator of the heir.
§ 253. In more recent times, in
the consulate of Trebellius Maximus
and Annaeus Seneca, a senatuscon-
sult was passed providing that,
when an inheritance is transferred
in pursuance of a trust, the actions
which the civil law allows to be
brought by the heir or against the
heir shall be maintainable by the
transferree and against the trans-
ferree. Hence the old covenants
were discontinued, and the Praetor
used to give to and against the
transferree as quasi heir the in-
direct [4 $ 34] or fictitious actions
which are formulated in the album.
$ 254. However, ss heirs, when
made trustees to transfer the whole
or nearly the whole of a succession,
declined for a small benefice or no
benefice to accept the succession,
and this caused a failure of the
trusts, the senate in the consulship
of Pegasus and Pusio decreed, that
8 devisee in trust to transfer a suc-
cession should have the same right
to retain a fourth of the succession
as the lex Falcidia gives to an heir
charged with the payment of lega-
cies; and gave a similar right of
retaining thé fourth of any specific
thing left in trust. When this
senatusconsult comes into operation,
the heir is sole administrator and
the transferree of the residue is on
the footing of a partiary legatee,
that is, of a legatee of a certain part
of the estate under the kind of legacy
called participation. Accordingly
the stipulations appropriate between
an heir and partiary legatee are
entered into by the heir and trans-
ferree, in order to secure a ratable
division of the gains and losses.
arising out of the succession.
274
§ 255. Ergo siquidem non plus
quam dodrantem hereditatis scrip-
tus heres rogatus sit restituere, tum
ex Trebelliano senatusconsulto re-
stituitur hereditas, et in utrumque
actiones hereditariae pro rata parte
dantur, in heredem quidem iure
ciuili, in eum uero qui recipit he-
reditatem, ex senatusconsulto Tre-
belliano. quamquam heres etiam
pro ea parte quam restituit, heres
permanet, eique et in eum solidee
actiones conpetunt; sed non ulter-
ius oneratur nec ulterius illi dan-
tur actiones, quam apud eum com-
modum hereditatis remanet.
$ 256. At si. quis plus quam do-
drantem uel etiam totam heredita-
tem restituere rogatus sit, locus est
Pegasiano senatusconsulto.
§ 257. Sed is qui semel adierit
hereditatem, si modo sua uoluntate
adierit, siue retinuerit quartam
pertem siue noluerit retinere, ipse
uniuersa onera hereditaria sustinet ;
sed quarts quidem retenta quasi
partis et pro parte stipulationes
interponi debent tamquam inter par-
tiarum legatarium et heredem ; si
uero totam hereditatem restituerit,
&d exemplum emptae et uenditae
hereditatis stipulationesinterponen-
dae sunt.
$ 258. Sed. si recuset scriptus
heres adire hereditatem ob id quod
dicat eam sibi suspectam esse quasi
damnosam, cauetur Pegasiano sena-
tusconsulto, ut desiderante eo cui
restituere rogatus est, iussu prae-
ioris adeat et restituat, proindeque
ei et in eum qui receperit (Aere-
ditatem), actiones dentur, &c iuris
est, ex senatusconsulto Trebelliano.
quo casu nullis stipulationibus opus
est, quia simul et huic qui restituit
securitas datur, et actiones here-
ditariae ei et in eum transferuntur,
qui receperit hereditatem,
$ 259. Nihil autem interest,
utrum aliquis ex asse heres institu-
DE RERUM UNIVERSITATIBUS. [11.§§ 246-259.
$ 255. But if no more than three
fourths of the inheritance is in trust
to be transferred, then the Sc. Tre-
bellianum governs the transfer, and
both are liable to be sued for the
debts of the inheritance in ratable
portions, the heir by civil law, the
transferree by the Sc. Trebellianum :
for though the heir even as to the
transferred portion continues heir,
and can sue or be sued for the
totality of a debt, in practice the
praetor only allows bim to sue or
be sued in the proportion of his be-
neficial interest in the inheritance.
§ 256. If more than three fourths
or the whole is devised in trust to
be transferred, the Sc. Pegasianum
comes into operation.
$ 257. And when once the heir
has accepted, that is to say, volun-
tarily, whether he retains one fourth
or declines to retain it, he is sole
administrator: but, if he retains a
fourth, he should covenant with the
transferree as quasi partiary le-
gatee ; if he transfers the whole, he
should covenant with him as quasi
vendee,
§ 258. If an heir refuse to accept
& succession from a suspicion that
the liabilities exceed the assets, it
is provided by the Sc. Pegasianum,
that on the request of the transferree
he shall be ordered by the Praetor to
accept and transfer; whereupon the
transferree shall be just as capable
of suing and being sued as the trans-
ferree under the Sc. Trebellianum.
In this case no stipulations are ne-
cessary, because the transferror is
protected, and the hereditary ac-
tions pass to and against the trans—
ferree.
§ 259. It makes no difference
whether a sole heir or a part heir
1.$$246-259.] DE FIDEICOMM. HEREDITATIBUS. 275
ius aut totam hereditatem aut pro is under a trust to transfer, for a
parte restituere rogetur, an ex part heir is entitled under the Sc.
parte heres institutus aut totam Pegasianum to retain a fourth of
eam partem aut partis partem re- his part, |
stituere rogetur ; nam et hoc casu de
quarta parte eius partis ratio ex Pe-
gasiano senatusconsulto haberi solet.
§ 246, The dispositions of a testator which have been hitherto
considered were directions addressed to his successor, resembling
the orders of a father to his son or of a master to his slave, or the
commands of a magistrate to his subordinate or of the state to its
members, Hence the importance of the regular institution of a
successor, of finding a person who, being a mere creature of the
testator’s, shall be compelled to execute his commands.
Fideicommissa, to which we now proceed, are not commands, but
requests, Legatum est quod legis modo, id est, imperative, testa-
mento relinquitur, nam-.ea quae precativo modo relinquuntur fidei-
commissa vocantur, Ulpian, 24,1. ‘A legacy is a legislative or
imperative testamentary disposition: a precative disposition (a
disposition in the form of entreaty) is a trust.’
The original object of trusts was to extend the testator’s. bounty
to those who were legally incapacitated to be legatees; for in-
stance, aliens and Latini Juniani; for though Hadrian - subse-
quently incapacitated aliens for taking the benefit of a trust, yet,
as declarations of trust were exempt from many other restrictions
which hampered direct devises, they survived the circumstance
which was the principal motive of their introduction. For in-
stance, another object of the declaration of trusts was to avoid
the restrictions imposed by the lex Falcidia on the amount of
legacies bequeathable to legatees who were capable of taking
(had capacitas as well as testamentifactio passiva), § 254, and
this object would continue to operate as a motive for the employ-
ment of trusts even after the invalidation of trusts in favour of
peregrini.
That trusts had originally no legal validity, we see from Cicero,
Verres, 2, 1, 47, where we learn that it} was usual for the testator
to make the successor take an oath to perform the testator's
wishes, thus supplying by religious motives the want of a poli-
tical sanction. But Augustus, as we are informed by Justinian,
Inst. 2, 23, in some individual cases of breach of trust directed
T 4
276 DE RERUM UNIVERSITATIBUS. [m.$$ 246-259.
the consuls to interpose their authority and compel trustees to
execute their charge; and trusts soon became an ordinary mode
of testamentary disposition, and, in process of time, a permanent
fiduciary jurisdiction was established, the court of the praetor
fideicommissarius.
Originally if a testator wished to leave to a certain person the
net amount of his fortunes, unsaddled with the burden of admin-
istration, he instituted another as heres, whose sole function was
the satisfaction of creditors and the discharge of the other duties of
administration : and bequeathed the net residue of his patrimony
to the real object of his bounty as legatee (legatarius) When
this course was restricted by the lex Falcidia, a testator who wished
& certain donee to receive the whole of his patrimony free from
burdens would institute another person as heres, subject to a trust
to transfer the whole of the inheritance, after payment of debts
and with some remuneration for his trouble, to the beneficiary
donee (fideicommissarius). At first the testator could only rely
on the honour of the heres, for these trusts were not legally bind-
ing; and not long after they became legally binding they were
subjected by Sc. Pegasianum to the same restrictions as were im-
posed on legacies. Sc. Trebellianum made the cestui que trust
heres or heredis loco, i.e. not liable to the Faleidian abatement.
Se. Pegasianum, to subject him to this abatement, made him
legatarius. Thus the advantage of having a disinterested Exe-
eutor, of leaving the testator's wishes to be carried into effect by
& person not, like the successor or legatee, interested in delayed or
inequitable distribution ; an advantage which an English testator
may, if he chooses, secure, was deliberately sacrificed by the Roman
legislator.
Another method of leaving to a person the net value of an
inheritance without the troubles of administration, viz. the insti-
tution of the slave of the devisee, has already been noticed.
$ 189, Comm.
The conversion of a moral into a political obligation by the
legalization of trusts, was similar to what occurred when the
Twelve Tables gave legal force to the nuncupation declaring the
conditions and purposes of a mancipation; and, remembering
the celebrated ordinance, Cum nexum faxit mancipiumque, uti
lingua nuncupassit, ita jus esto, it may occur to us to wonder
why Augustus did not imitate the energetic brevity of the ancient
11. §§ 246-259.] DE FIDEICOMM. HEREDITATIBUS. 277
legislator, and simply enact, Cum testamentum faxit codicillosve,
uti fideicommiserit, ita jus esto. There would then have been no
need of the cumbrous machinery of fictitious sales and stipulations
between quasi vendor and quasi vendee; but a little reflection will
show that such an enactment would have operated very incon-
veniently, and have defeated the very purposes for which trusts
were instituted. Such an enactment would have made trusts,
hke nuncupations, a matter of civil law; and the jus strictum of
the civil law was far from elastic or rational even in the time
of Augustus; so that, if it was intended to enlarge the powers of
testators and the discretion of the fiduciary tribunal, it was abso-
lately necessary to make trusts a province not of legal but of
equitable jurisdiction.
§ 251. The transferree, it will be seen, was quasi heir when the
Se. Trebellianum applied: when the Sc. Pegasianum applied he
was either quasi legatee or quasi vendee.
§ 252. These stipulations were necessary because emptio-venditio
produced no universal succession, i.e. could only transfer the cor-
pora, not the obligationes. But after Antoninus Pius these stipu-
lations were not required in case of an emptio hereditatis, for,
Reseriptum est a Divo Pio utiles actiones emptori hereditatis
dandas. D. 2, 14, 16.
$ 253. The terms of the Sc. Trebellianum, passed in the reign of
Nero, a.p. 62, are given in the Digest 81, 1, 2. * Forasmuch as
equity requires that whenever a succession is devised in trust, any
actions arising thereout should be brought against the transferree
of the suecession and its benefits, and that the devisee should incur
no risk in consequence of his trust; it is decreed that the actions of
and against an heir, shall not be granted to or against an heir who
transfers a succession in pursuance of a trust, but to and against
the testamentary transferree, in order that in future the last wishes
of testators may have more effect.’ It is strange that the lawgiver
should have stooped to the use of fiction (actio utilis) the natural
instrument of a magistrate timidly usurping legislative power.
Bethmann-Hollweg § 96, suggests that the actio utilis was not
actio fictitia but actio in factum concepta.
$ 254. By the Sc. Trebellianum, if the whole beneficial interest
in an inheritance was transferred, the whole right of suing and
being sued passed to the transferre: if only a portion of the bene-
ficial interest was transferred, both the transferror and the trans-
278 DE RERUM UNIVERSITATIBUS. [x1 §§ 246-259,
ferree could sue and be sued in the same proportion. The Sc.
Pegasianum, passed in the reign of Vespasian, A.D. 70-76, appa-
rently provided that when less than a fourth of the inheritance is
left to the benefit of the heir, the Se. Trebellianum should be
inoperative, that is to say, that in such a case the actions by or
against the inheritance shall not be maintainable by or against
both the heir and transferree in the proportion of their interests,
but should be exclusively maintainable by or against the heir. In
fact, having subjected the transferree to the liability of abatement
which the lex Falcidia imposed on the legatee, it seemea logical to
put him in all other respects on the footing of a legatee, including
the immunity from being sued and incapacity of suing for the
debts of the succession. Having thus made the heir sole adminis-
trator, in order to enable the heir to transfer the transferree’s
portion at once, and to protect both the heir and the transferree
against erroneous computation of the amount to be transferred,
the Se. Pegasianum directed the heir and transferree to enter into
the covenants usual between an heir and a partiary legatee. The
heir promised, in the event of an underestimate, to make an ad-
ditional payment; and the transferree promised, in the event of
an overestimate, to make a proportional repayment. A partiary
legatee is a legatee by partition, which Theophilus calls a fifth
form of legacy, and of which Ulpian gives the formula, 24, 25.
‘As single things can be bequeathed, so can a universality, for
instance thus: Do thou, my heir, partition and divide my inherit-
ance with Titius; in which case a moiety is deemed to be be-
queathed, but any other part, a third or fourth, may be bequeathed,
and this form of bequest is called partition This form of legacy
probably owed its origin to the lex Voconia, § 226, which forbade
Classicus to make an heiress.
§ 257. It is therefore not true, as might be inferred from § 254,
that the stipulations between quasi vendor and quasi vendee were
entirely discontinued. The reason why these obsolete covenants
again became necessary is probably because the Sc. Pegasianum,
having abrogated the Sc. Trebellianum in all cases where less than
a fourth of the inheritance is left to the heir, had omitted to declare
what mutual securities were proper to be taken by the heir and
transferree, in case the heir declined to avail himself of his right
to retain a fourth.
Modestinus suggested another course. He held that if the heir
m. §§ 246-259.] DE FIDEICOMM. HEREDITATIBUS. 279
declined to avail himself of his right, and transferred the whole
inheritance, there was no need of any stipulations, as the Sc. Tre-
bellianum would then apply. However he thought the point
doubtful, for he recommended that the heir should feign unwil-
lngness to accept a damnosa hereditas, and should make a com-
pulsory acceptance by the order of the praetor, in which case the
actions are transferrred in totality to the transferree by the express
provision of the Sc. Pegasianum, Dig. 36, 1,45. The sequence
of §§ 257, 258 seems to indicate an intention of Gaius to suggest
that this course might be adopted.
§ 258. The requirement for form’s sake of a compulsory aditio
and restitutio, instead of ‘making the hereditas vest immediately
under the will in the fideicommissarius (the course pursued by the
legislator in the English statute of Uses and Trusts), has already,
1 $ 190, been noticed as characteristie of Roman jurisprudence.
It had this inconvénience, that it permitted the trusts to be defeated
by the death or absence, malicious (dolo malo) or involuntary, of
the heres or fiduciarius. No remedy was provided for this con-
tingency till the time of Justinian, who enacted that in such a
ease the inheritance should vest in the fideicommissarius by mere
operation of law (ipso jure) by means of a fiction of aditio and
restitutio, a fiction introduced, as evidenced by the term actio
utilis, into the remedy of the cestui que trust. Sancimus itaque
ut sive per contumaciam abfuerit is cui restitutio imposita est,
sive morte praeventus nullo relicto stecessore fuerit, sive a primo
fideicommissario in secundum translatio celebrari jussa est, ipso
jure utiles actiones transferantur, Cod. 6, 49, 7. * Be it enacted, that
on the contumacious absence or death unsucceeded of a fiduciarius
or of a first fideicommissarius charged in favour of a second, the
law iteelf operate a transfer of fictitious actions from such persons
to the cestui que trust.’
§ 259. The stipulations of the transferree as quasi vendee or
quasi partiary legatee introduced by the Sc. Pegasianum were not
only a cumbrous machinery, but after all afforded an insufficient
security to the parties. 'The heir and transferree were always in
mutual danger of one another's insolvency, and an heir after trans-
ferring the whole inheritance, though not fairly liable to any
molestation or vexation on account of it, might find himself with
two lawsuits on his hands: he might first be sued by the creditors
of the estate, and then have to recover back what he is condemned
280 DE RERUM UNIVERSITATIBUS. [n. §§ 246-259.
to pay them from the transferree by suing him on the covenants of
quasi vendor and quasi vendee.
It is not surprising therefore, that J ustinian abolished these
provisions of the Sc. Pegasianum, and enacted that in every case
there shall be a transfer or division of actions as contemplated by
the Se. Trebellianum, i.e. that the actions by or against the in-
heritance shall either be transferred in totality to the transferree,
or be maintainable by or against both the heir and the transferree
in the proportion of their interests. See Inst. 2, 23.
The following observations may serve to complete the explana-
tion of the Sc. Trebellianum and the Sc. Pegasianum.
Succession is the transfer of a right from one person (auctor) to
another person (successor), such as occurs, for instance, in the volun-
tary alienation of property. Here the same dominion that was
previously exercised by the alienor is subsequently exercised by
the alienee. "The right continues the same; the person invested
therewith is changed. It was characteristic of jus in personam or
obligation (before, at least, the invention of papers payable to the
holder and transferable by delivery) that it was not capable of
a similar alienation. All that could be done to accomplish a similar
result was to employ one of two cumbrous processes, Novation or
Cession of Action (Procuration) 2 $ 38. 3 §§ 155-162 comm.
In these procedures there is no Succession, for in Novation the
transferree is not invested with the same right that previously vested
in the transferror, but a new right is created in the transferree while
the old right of the transferror is extinguished : and in Procuration
or Cession the right still continues vested in the transferror, who
allows the transferree to recover it or enforce it by action and retain
the fruits of the recovery.
This inalienability of obligations, however, was confined to
SINGULAR successions (in singularum rerum dominium successio):
UNIVERSAL succession (per universitatem successio) or the trans-
mission of the ideal whole of a patrimony, of which we
have an example in hereditas testamentary or intestate, differed
from SINGULAR succession by the capacity of passing obligation
as well as Dominion. The heres of the testator or intestate sued
and was sued in his own name on the obligations, active or pas-
sive, that originally vested in the deceased. But UNIVERSAL
succession was an institution only recognised by Roman jurispru-
dence in certain definite cases. It was a formidable operation and
1.$$246-259.] DE FIDEICOMM. HEREDITATIBUS. 281
rigorously circumscribed. It was not a transaction that the law
allowed to be accomplished at the discretion of individual parties
in pursuance of private convention. It was only admitted in the
cases enumerated by Gaius, 2 § 98, and, without legislative inter-
ference, the list could not be augmented.
These difficulties in the transfer of obligation opposed a great
obstacle to the transfer (restitutio) of trust successions: and these
difficulties were partially removed by the Sc. Trebellianum and
Sc. Pegasianum, and more completely by Justinian, by investing
the Restitutio with the character of successio per universitatem,
in other words, by the legislative sanction of a new instance of
UNIVERSAL succession.
The following observations may illustrate the joint operation of
the laws concerning Trusts and the lex Faleidia. Although the
cestui que trust (fideicommissarius) or person to whom an inherit-
ance or a portion thereof is directed to be transferred (restitui)
is charged like a coheres with the legacies in proportion to the
quota which he takes, he has not like the heres a right of deduct-
ing from the legacies with which he is charged, and retaming for
himself a Falcidian portion or fourth of his quota. His rights
against the legatee depend on the question whether the testator in
directing the transfer, or in other words creating the trust, used
the terms deductis legatis, ‘after deduction of legacies,’ a clause
favouring the legatees ; or whether, in giving the legacies, he used
terms charging them on the inheritance (si ad heredis onus esse
testator legata dixerit); which would imply that the cestui que
trust was to be exactly assimilated to the legatees. Where no
terms are expressed, the clause, deductis legatis, is presumed. The
following examples will illustrate the working of the law.
(1) A testator owning 400 (sestertia, or any other units) leaves
all to A as his sole successor, but directs him as trustee (fiduci-
arius) to convey half the inheritance to B (fideicommissarius), and
leaves a legacy of 200 to C. The effect is that C receives 100
from A and 100 from B. D. 86, 1, 1, 20.
But suppose the testator left a legacy of 400 to C. Then C will
receive 200 from B who has no right of retaining anything, and
100 from A, who is entitled to retain for himself one fourth of his
inheritance, i.e. the 100 that remain.
(2) If an heir is charged to transfer the whole of an inheritance
and the legacies are added to his charge (si ad heredis onus esse
282 DE RERUM UNIVERSITATIBUS. [u. §§ 246-259.
testator legata dixerit), the interests of both the legatee and trans-
ferree undergo, if necessary, a proportional reduction. For in-
stance a testator, proprietor of 400, makes A his sole successor,
but requests him to transfer the whole succession to B, and gives
a legacy of 800 to C, making use of the above-mentioned terms.
The result is that A, the heir, retains 100 as his Falcidian fourth,
and the remaining 300 are distributed between B the cestui que
trust and C the legatee, in the proportion of 4 to 8; that is to say,
the cestui que trust takes + or 1712, and the legatee takes $ or
1284. Dig. 86, 1, 8, pr.
(3) If the testator directs the heir to transfer the whole of the
inheritance ‘after deduction of the legacies’ (deductis legatis), the
transferree bears the whole burden of the legacies, and only keeps
what remains after full payment of the legatee, subject to this
proviso, that, though a transferree is generally not entitled to a
Falcidian fourth, yet if a transferree who has to bear the burden
of legacies receives the inheritance reduced by the Falcidian fourth
of the heres, he is himself entitled to reduce proportionally the
legacies and retain a fourth thereof for himself. Dig. 35, 1, 48, 3.
Dig. 85, 2, 32,4. E.g. a testator, proprietor of 400, makes A his
sole successor, requesting him to transfer the whole to B after
deduction of legacies, and leaves a legacy of 800 to C. The result
is that the heir retains } (100); and the remaining 800 is dis-
tributed between the legatee and transferree, the legatee taking
800 reduced by } (225), and the transferree taking that 4 (75).
The same effect would have been produced if the testator, instead
of using the clause deductis legatis, had simply charged the lega-
cies on the cestui que trust. Or the rights of the cestui que trust
may be calculated with the same result by the following method.
The heres retains 1 and transfers $ to the cestui que trust, who
under Justinian's legislation is no longer a partiary legatee as he
was under the Sc. Pegasianum, but a coheres with the heres in the
proportion of $ to 1. The legatee is entitled to 300 from these
coheirs in the proportion of their shares of the succession. The
heres, however, is protected by the lex Falcidia, and thus 1 of the
legacy is lost to the legatee: he obtains, however, $ (225) from
the transferree, who retains for himself the remaining 1 (75).
(4) I£ the heres makes voluntary aditio, but does not retain
the Falcidian fourth to which he is entitled, then, if the legacy
was charged on the inheritance, the whole inheritance is divided
11. §§ 260-289.] SINGULAE RES FIDEICOMMISSARIAE. 283
between the transferree and legatee in the proportion of 4 to 3:
that is, the transferree obtains altogether 2284 and the legatee
171%.
(5) Lf the legacy was expressly charged on the fideicommissarius,
or if there was no express clause defining whether it was charged
on him or on the heres, then the legatee will in the first instance
benefit by the heres abstaining from his fourth: and the transferree
will only get what remains after full payment of the legacy. Thus,
m the circumstances we have assumed, the legatee will get 300 and
the transferree 100.
(6) If the heres abstains from his } expressly in favour of the
transferree, the latter alone gains the portion of the heres, Dig. 36,
1,1, 19.
(7) 1f the heres only makes compulsory aditio, the legatee takes
no share of the Falcidian fourth, which all goes to the transferree
who compelled the heres to make aditio. Dig. 36, 1, 2.
(8) If the heres has to transfer the whole but has received his
Faleidian fourth in the shape of legacies, the transferree has to
satisfy the legatees: and if he cannot pay the whole of their lega-
cies they may recover from the heres all that he receives beyond
his fourth.
(9) If the heir is directed to transfer not the whole but $ of the
inheritance, the transferree has to satisfy the legatees, but deducts
and retains for himself } of their legacies, as he would under the
circumstances supposed in No. 8. Vangerow, § 559.
DE SINGULIS REBUS PER FIDIECOMMISSUM RELICTIS.
§ 260. Potest autem quisque etiam
res singulas per fideicommissum re-
linquere, uelut, fundum hominem
uestem argentum pecuniam, et uel
ipsum heredem rogare, ut alicui re-
stituat, uel legatarium, quamuis a
legatario legari non possit.
$ 261. Item potest non solum
propria testatoris res per fideicom-
missum relinqui, sed etiam heredis
aut legatarii aut cuiuslibet alterius.
itaque et legatarius non solum de
ea re rogari potest, ut eam alicui
restituat quae ei legata sit, sed etiam,
§ 260. Not only aggregates of
right, but single rights, may be left
in trust, as property in land, in a
slave, in a garment, in plate, in
money; and the trust may be im-
posed either on an heir or on a
legatee, although a legatee cannot
be charged with a legacy.
§ 261. Not only the testator's
property, but that of an heir, or
legatee, or stranger, may be left in
trust. Thus a legatee may be
charged with a trust to transfer
either a thing bequeathed to him,
or any other thing belonging to
284 DE RERUM UNIVERSITATIBUS. [n. §§ 260-289.
de alia, siue ipsius legatarii siue
aliena sit. [sed] hoc solum obser-
uandum est, ne plus quisquam ro-
getur alis restituere, quam ipse
ex testamento ceperit; nam quod
amplius est, inutiliter relinquitur.
$ 262. Cum autem aliena res per
fideicommissum relinquitur, necesse
est ei qui rogatus est, aut ipsam
redimere et praestare, aut aestima-
tionem etus soluere, stcué iuris est
8 per damnationem aliena res legata
sit. sunt tamen qui putant, si rem
per fideicommissum relictam domi-
nus non uendat, extingui fideicom-
missum ; sed aliam esse causafn per
damnationem legati.
$ 263. Libertas quoque seruo per
fideicommissum dari potest, ut uel
heres rogetur manumittere, uel le-
gatarius.
$ 264. Nec tnterest utrum de suo
proprio seruo testator roget, an de
eo qui ipsius heredis aut legatarti
uel etiam extranei sit.
$ 265. Itaque et alienus seruus
redimi et manumitti debet. quodsi
dominus eum non uendat, sane
extinguitur fideicommissaria liber-
tas, quia hoc casu pretii conputatio
nulla interuenit.
$ 266. Qui autem ex fideicom-
misso manumittitur, non testatoris
fit libertus, etiamsi testatoris seruus
fuerit, sed eius qui manwmittit.
$ 267. At qui directo testamento
liber esse iubetur, uelut hoc modo
STICHVS SERVVS (MEVS) LIBER
ESTO, uel hoc sTICHYM SERVVM
MEVM LIBERVM ESSE lVBEO, 18 ip-
sus testatoris fit libertus. nec
alius ullus directo ex testamento
. libertatem habere potest, quam qui
utroque tempore testatoris ex iure
Quiritium fuerit, el quo faceret tes-
tamentum et quo moreretur.
$268. Multum autem differunt ea
quae per fideicommissum relincwn|-
tur, abhis quae directo iurelegantur.
himself or to a stranger; provided
always that he is not charged with
& trust to transfer more than he
takes under the will, for in respect
of such excess the trust would be
void.
$ 262. When a stranger’s pro-
perty is left by trust, the trustee
must either procure and convey the
specific thing or pay its valuation,
like an heir charged under a be-
quest by condemnation; though
some hold that the owner's refusal
to sell avoids a trust to convey,
while it does not avoid a bequest
by condemnation.
$ 263. Liberty can be left to a
slave by a trust charging either an
heir or a legatee with his manu-
mission.
$ 264. And it makes no differ-
ence whether the slave is the pro-
perty of the testator, of the heir,
of the legatee, or of a stranger.
$ 265. A stranger's slave, there-
fore, must be purchased and manu-
mitted, but his owner's refusal to
gell extinguishes the gift of liberty,
because liberty admits of no pecu-
niary compensation.
$ 266. A trust of manumission
makes the slave the freedman, not
of the testator, though he may have
been the owner of the slave, but of
the manumitter,
§ 267. A direct bequest of liberty,
such as: ‘ Be my slave Stichus free,’
or, ‘I order that my slave Stichus
be free,’ makes the slave the freed-
man of the testator. A direct be-
quest of liberty can only be made
to a slave who is the testator's qui-
ritarian property at both periods,
both at the time of making his will
and at the time of. his decease.
§ 268. There are many differ-
ences between fiduciary devises and
direct bequests.
11. § 260-289.] SINGULAE RES FIDEICOMMISSARIA E.
$ 269. Nam ecce per fideicom-
missum efiam —|— heredis relin-
qui potest; cum alioquin legatum
—|—— inutile sit.
§ 270. | Item intestatus moriturus
potest ab eo ad quem bona eius
pertinent, fideicommissum alicui
relinquere ; cum alioquin ab eo le-
gari non poseit.
6 270a. Item legatum codicillis
relictum non aliter ualet, quam si a
testatore confirmati fuerint, id est
nisi in testamento cauerit testator,
ut quidquid in codicillis scripserit,
id ratum sit; fideicommissum uero
eiiam non confirmatis codicillis re-
linqui potest.
$ 271. Item a legatario legari non
potest; sed fideicommissum relin-
qui potest. quin etiam ab eo quoque
cui perfideicommissum relinquimus,
rursus ali per fideicommissum re-
linquere possumus.
$ 272. Item seruo alieno directo
hbertas dari non potest; sed per
fideicommissum potest.
$ 273. Item-codicillis nemo heres
institui potest neque exheredari,
quamuis testamento confirmati sint.
at is qui testamento heres institutus
est, potest codicillis rogari, ut eam
hereditatem alii totam uel ex parte
restituat, quamuis testamento codi-
cilli confirmati non sint.
$ 274. Item mulier quae ab eo
qui centum milia aeris census est,
per legem Voconiam heres institui
non potest, tamen fideicommisso
relictam sibi hereditatem capere
$275. Latini quoque qui here-
ditates legataque directo iure lege
Iunia capere prohibentur, ex fidei-
commisso capere possunt.
$ 276. Item cum eenatusconsulto
prohibitum sit proprium seruum
minorem annis Xxx liberum et he-
285
$ 269. In a fiduciary devise a
bequest may be charged on the
heir of the heir, whereas such a
bequest made in any other form is
void.
$ 270. Again, a man going to die
intestate can charge his heir with a
trust, but cannot charge him with
a legacy.
$ 270a. Again, a legacy left by
codicil 1s not valid, unless the codicil
is ratified, that 1s, unless the testa-
tor has provided in his will that
any codicil should be valid: where-
as a trust requires no ratification of
the codicil.
$ 271. A legatee cannot be
charged with a legacy, but can be
charged with a trust, and the bene-
ficiary of a trust may himself be
charged with a further trust.
§ 272. A slave of a stranger can-
not be enfranchised by direct be-
quest, but may by the interposition
of a trust.
§ 273. A codicil is not a valid
instrument for the institution of an
heir or his disinheritance, though
ratified by will: but an heir insti-
tuted by will may be charged by a
codicil to convey the estate in whole
or in part to another person without
any previous ratification by will.
§ 274. A woman, whom a testator
registered in the census as owning
a hundred thousand sesterces is for-
bidden by the lex Voconia to insti-
tute heiress, can take the succession
by the intervention of a trustee.
$ 275. Latini Juniani, who are
disabled by the lex Junia from
taking an inheritance or legacy by
direct devise, can take it by means
of a declaration of trust.
$ 276. A decree of the senate
(rather, the lex Aelia Sentia 1 $18,)
incapacitates a testator's slave under
286
redem instituere, plerisque placet
posse nos iubere liberum esse, cum
annorum Xxx erit et rogare ut
tunc illi restituatur hereditas.
$ 277. Item quamuis non (possi-
mus) post mortem eius qui nobis
heres extiterit, alium in locum eius
heredem instituere, tamen possumus
eum rogare, ut cum morietur, alii
eam hereditatem totam uel ex parte
restituat. et quia post mortem
quoque heredis fideicommissum dari
potest, idem efficere possumus et si
ita scripserimus CVM TITIVS HERES
MEVS MORTVVS ERIT, VOLO HEREDI-
TATKM MEAM AD P. MEVIVM PEBTI-
NERE. utroque autem modo, tam
hoc quam illo, Titius heredem swam
obligatum relinqui£. de fideicom-
misso restituendo.
$ 278. Praeterea legata (per)
formulam petimus; fideicommissa
nero Romae quidem apud consulem
uel apud eum praetorem qui prae-
cipue de fideicommissis ius dicit,
persequimur, in prouinciis uero
apud praesidem prouinciae.
$ 279. Item de fideicommiseis
semper in urbe ius dicitur; de
legatis uero, cum res aguntur.
$ 280. Item fideicommissorum
usurae et fructus debentur, si modo
moram solutionis fecerit qui fidei-
commissum debebit ; legatorum uero
usurae non debentur; idque re-
scripto diui Hadriani significatur.
scio tamen Iuliano placuisse, in eo
legato quod sinendi modo relin-
quitur, idem iuris esse quod in fidei-
commissis; quam sententiam et his
temporibus magis optinere uideo.
$ 281. Item legata Graece scripta
non ualent; fideicommissa wero
ualent.
DE RERUM UNIVERSITATIBUS. [n.$$260-289.
thirty years of age for being en-
franchised and instituted heir; but,
according to the prevalent opinion,
he can be ordered to be free on at-
taining the age of thirty, and the
heir may be bound by a declaration
of trust to convey the inheritance
to him on that event.
§ 277. An heir in remainder
after the death of & prior heir can-
not be instituted, but an heir may
be bound by a declaration of trust
to convey the estate, when he dies,
in whole or in part to another per-
son ; or, as a trust may be limited
to take effect after the death of the
heir, the same purpose may be
accomplished in these terms: ‘When
my heir is dead, I wish my inherit-
ance to go to Publius Mevius ;'
and whichever terms are employed,
the heir of my heir is bound by a
trust to convey the inheritance to
the person designated.
§ 278. Legacies are recovered by
judex. and formula ; trusts are en-
forced by the extraordinary juris-
diction of the consul or praetor
fideicommissarius at Rome; in the
provinces by the extraordinary ju-
risdiction of the president.
$ 279. Cases of trust are heard
and determined at Rome at all times
of the year; cases of legacy can
only be litigated during the trial
term.
$ 280. Trusts entitle to payment
of interest and interim profits on
delay of performance by the trus-
tee; legatees are not entitled to
interest, as & rescript of Hadrian
declares. Julianus, however, held
that a legacy bequeathed in the form
of permission is on the sime footing
as a trust, and this is now the pre-
valent doctrine,
$ 281. Bequests expressed in
Greek are invalid; trusts expressed
in Greek are valid.
1x §§ 260-289. SINGULAE RES FIDEICOMMISSARIAE.
§ 282. Item si legatum per dam-
nationem relictum heres infittetur,
in duplum cum eo agitur ; fideicom-
missi uero nomine semper in sim-
plum persecutio est.
$ 283. Item (quod) quisque ex
fideicommisso plus debito per erro-
rem soluerit, repetere potest; at
id quod ex causa falsa per damna-
tionem legati plus debito solutum
sit, repeti non potest. idem scilicet
iuris est de eo [legato] quod non
debitum uel ex hac uel ex illa causa
per errorem solutum fuerit.
$ 284. Erant etiam aliae differ-
entiae, quae nunc non sunt.
§ 285. Ut-ecce peregrini poterant
fideicommissa capere; et fere haec
fuit origo fidezcommissorum. sed
postea id prohibitum est ; et nunc
ex oratione diut Hadriani senatus-
consultum factum est, ut ea fidet-
commissa fisco uindicarentur.
$ 286. Caelibes quoque qui per
legem Iulam hereditates legataque
capere prohibentur, olim fideicom-
missa uidebantur capere posse.
$286 a. Item orbi qui per legem
Papiam [ob id quod liberos non ha-
bebant ] dimidias partes hereditatum
legatorumque perdunt, olim solida
fideicommissa uidebantur capere
posse. sed postea senatusconsulto
Pegasiano proinde fidetcommissa
quoque ac legata hereditatesque
capere posse prohibiti sunt ; eaque
translata sunt ad eos qui (in eo)
testamento liberos habent, aut si
nullus liberos habebit, ad populum,
sicut iuris est in legatis et in here-
ditatibus, quae eadem aut simili ex
cau (sa caduca fiunt.
$ 287. Dtem olim incertae per-
sonae uel postumo alieno per fidei-
287
$ 282. An heir who disputes a
legacy in the form of condemnation
is sued for double the sum be-
queathed; a trustee is only suable
for the simple amount of the sub-
ject of trust.
$ 283. On overpayment by mis-
take in the case of a trust, the excess
can be recovered back by the trus-
tee; on overpayment by mistake
of a bequest by condemnation, the
excess cannot be recovered back by
the heir; so, on total failure of a
disposition and payment by mistake,
a trust sum can, a legacy by con-
demnation cannot, be recovered
back.
§ 284. There formerly were other
differences which are now abolished.
§ 285. Thus aliens could be bene-
fited by a declaration of trust, and
this was the principal motive in
which trusts originated, but after-
wards they were incapacitated ; and
now, by a decree of the senate
passed on the proposition of Ha-
drian, property devised in trust for
the benefit of aliens is confiscated.
§ 286. Celibates, who are dis-
abled by the lex Julia from taking
successions or legacies, were for-
merly deemed capable of benefiting
by a declaration of trust. And
childless persons, who forfeit by
the lex Papia half the succes-
sions and legacies destined for
them, were formerly deemed ca-
pable of taking the whole as bene-
ficiaries of a trust. But at a later
period the Sc. Pegasianum extended
to trust dispositions the disabilities
which attach to legacies and suc-
cessions, and made the trust fund
escheat to the devisees and legatees
who have children, and, failing de-
visees and legatees with children,
to the state, in the same way as
legacies and successions.
§ 287. So too, at one time, an
uncertain person or an afterborn
288
commissum relinqui poterat, quam-
uis neque heres institui neque legari
ei posset ; sed senatusconsulto quod :
auctore divo Hadriano factum est,
idem in fideicommissis quod in le-
gatis hereditatibusque constitutum
est.
$ 288. Item poenae nomine iam
non dubitatur nec per fideicommis-
sum quidem relinqui posse.
$ 289. Sed quamuis $i» multis
iuris partibus longe latior causa sit
fideicommissorum quam eorum quae
directo relincuntur, in quibusdam
tantumdem ualeant, tamen tutor
non aliter testamento dari potest
quam directo, ueluti hoc modo L1-
BERIS MEIS TITIVS TYTOR ESTO, uel
ita LIBERIS MEIS TITIVM TVTOREM
DO; per fideicommissum wero dari
non potest.
DE RERUM UNIVERSITATIBUS. [11. § 260-289.
stranger could take the benefit of.
& trust, though he could neither
take as heir nor as legatee, but a
decree of the senate, passed on the
proposition of the emperor Ha-
drian, extended to trust funds
the disabilities relating to legacies
and successions.
§ 288. Penal dispositions are at
last decided to obtain no validity by
being clothed in a fiduciary form.
§ 289. Although in many circum-
stances declarations of trust have
an ampler scope than direct dispo-
sitions, and in some respects are on
& par, yet a testamentary guardian
can only be appointed by direct
nomination, as thus: ‘Be Titius
guardian to my children ;’ or thus :
‘I nominate Titius guardian to my
children ;’ he cannot be appointed
indirectly by the intermediation of
a trustee.
§ 264. Justinian declares that the heir is not forthwith released
from his obligation by the owner’s refusal to sell, but will be bound
to seize any opportunity that may subsequently offer of purchasing
and manumitting the slave in pursuance of the trust, Inst. 2, 24, 2.
§ 270. Codicils, according to Justinian, first acquired legal
validity in the time of Augustus, who being trustee under a codicil
set the example of performing the trust. The jurist Trebatius
being consulted by Augustus, whether it was possible to give legal
force to codicils without defeating the policy of testamentary law,
gave a decided opinion in the affirmative; and all scruples respect-
ing the validity of codicils vanished when it became known that
codicils had been left by the eminent jurist Labeo, Inst. 2, 25 pr.
Codicillus is the diminutive of codex, and denotes the less import-
ant and solemn documents or instruments of a man of business,
a pocket-book, an agenda, a codicil; as codex denotes the more
important and formal documents, a journal, a ledger, à wil. A
codicil enabled a testator who had solemnly executed a will to add
to or modify its dispositions without the necessity of re-execution.
It was usual in a will to ratify any prior or subsequent codicils ;
a codicil, however, might exist without any will. An informal will
could only take effect as a codicil if such was the expressed inten-
Ir. $$ 260-289. ] TERMS AND VACATIONS. | 289
tion of the testator. A codicil could not contain an institution or
disinheritance or substitution ; but it might contain a trust for the
transfer of the whole of an inheritance: and though a codicil could
not contain a disinheritance, yet we have seen that a codicillary
declaration that the successor was unworthy produced confiscation
or ereption of the inheritance for indignitas. A testator could only
leave a single will, for a later will revoked a former ; but he might
leave many codicils. A codicil needed no formalities, though Jus-
tinian required the attestation of five witnesses, not, however, as an
essential solemnity, but as a means of proof: for, in the absence of
five witnesses, the heir might be required to deny the existence of a
declaration of trust upon his oath, Inst. 2, 28, 12. The admission
of eodicils was a departure from the rule requiring a unity in the act
of testation. The concentration of his last will in a single act
disposing simultaneously of the universal succession was no longer
required of the testator. He now might distribute his fortune in a
series of fragmentary or piecemeal and unrelated dispositions.
$ 278. Fideicommissa were enforced by persecutio, or the prae-
tor's extraordinaria cognitio, 4 $ 184 comm.
$ 279. The law terms at Rome during the greater part of the
formulary period, were of two different kinds: (1) the juridical
term or term for jurisdictio, and (2) the judicial term or term for
trials.
(1) The term for jurisdiction, that is, for the solemn acts of the
praetor sitting on the tribunal in his court in the comitium, was
that originally prescribed for the ancient legis actiones. The year
was divided into forty dies fasti, unconditionally allotted to juridical
proceedings, one hundred and ninety dies comitiales, available for
junidieal purposes unless required for the legislative assemblies, dies
intercisi, of which certain hours were available for jurisdiction, and
sixty dies nefasti, which were absolutely unavailable for juridical
proceedings.
(2) J udicia, or trials before a judex 1n the forum, were unaffected
by dies fasti and nefasti, but dependent on another division, dies
festi and profesti: dies festi (days devoted to feriae, ludi, epulae,
sacrificia) being exempted from litigation. Besides these occasional
interruptions of litigation, there were longer set vacations, which
we find rearranged on several occasions. Thus at one time we find
two judicial terms (rerum actus, cum res aguntur) in the year, a
winter and a summer term, and two vacations, one in spring and
U
290 DE RERUM UNIVERSITATIBUS. [n.$$260—289.
another in autumn. Claudius substituted a single vacation at the
close of the year, and made the law term continuous. Rerum actum,
divisum antea in hibernos aestivosque menses, conjunxit, Suetonius,
Claudius, 23. Galba abolished this vacation, and confined the
intervals of htigation to dies feriati. Marcus Aurelius, in the time
of Gaius, abolished the distinction between the jurisdiction term
(dies fasti) and the trial term (rerum actus). He devoted two hun-
dred and thirty days (adding the number of dies fasti to the number
of dies comitiales) to forensic proceedings, under the name of dies
juridici or dies judiciarii, and allowed even the rest of the year, dies
feriati, to be used for litigation with the consent of the parties.
Judiciariae rei singularem diligentiam adhibuit: fastis dies judici-
arios addidit, ita ut ducentos triginta dies annuos rebus agendis
litibusque disceptandis constitueret, Capitolinus, Marcus, 10. ‘He
also regulated the administration of justice, noting forensic days in
the calendar, and allotting two hundred and thirty. to litigation
and civil suits.’
Subsequently to the time of Gaius, a law of Valentinian, Theo-
dosius, and Arcadius, A.D. 389, while it declared the principle that
all days are. dies juridici, excepted, besides Sundays and certain
other holidays, two months for harvest and vintage, and two weeks
at Easter. Justinian further appointed, by way of interpolation in
this law, certain vacations at Christmas, Epiphany, and Pentecost,
Cod. 8, 12, 7, thus furnishing the model en which the four English
law terms were regulated by Edward the Confessor. Subsequently,
the Statute. of Westminster, 3, Edward I, permitted assizes, i.e.
trials by jury of issues of fact, to be held in.the vacations, re-estab-
lishing a distinction corresponding to that of jurisdictional (dies
fasti) and judicial terms (rerum actus); with this difference, how-
ever, that as the same judicial authorities preside over. proceedings
in banco, or issues of law, and proceedings at nisi prius, or issues
of fact, the seasons set apart for the latter, that is, the trial terms,
are merely the vacations of the forraer, that is, of the sittings in
banco, See Puchta, Institutionen, § 158.
§ 280. After the time of Gaius the liability of a defendant to
interest and profits (fructus) from the date on which he was guilty
of MoRA appears to have been extended to all legacies without ex-
ception. Ex mora praestandorum fideicommissorum vel legatorum
fructus et usurae peti possunt: mora autem fieri videtur cum pos-
tulanti non datur, Paulus 3, 8, 4, ‘Delay of the heir to satisfy
n. $$ 260-289. ] MORA. 291
trusts and legacies entitles the cestui que trust and legatee to
fruits and interest. Delay dates from the ineffectual demand of
the creditor.’
A demand however is not requisite when a term for payment
was fixed in the disposition which gave rise to the debt (dies
adjecta); in other words, no interpellation is necessary in an obli-
gation ex die, i.e. an obligatio with a dies adjecta; for then Mora
begins at the expiration of the term. This is expressed by modern
jurists m the maxim: dies interpellat pro homine: ‘the day de-
mands instead of the creditor.’
A farther condition of Mora is the absence of all doubt and dis-
pute, at least of all dispute that is not frivolous and vexatious, as to
the existence and amount of the debt. Qui sine dolo malo ad
judicem provocat non videtur moram facere, Dig. 50, 17,68. ‘An
honest appeal to a judge is not deemed a mode of Delay.’
The date of Mora must not be identified with that of the Nativity
of an action (actio nata), an important date, as we shall see, in the
doctrine of Limitation or Prescription of which it is the starting
pomt, a starting point that may be antecedent to Mora. Mora
generally cannot precede an interpellation or démand of payment:
but the omission of a demand is precisely a part of that course of
remissness and negligence whereby, under the rules of Prescription,
a creditor ultimately forfeits his right to sue. Savigny, § 239.
Mora in the sphere of Obligation and Personal actions: exactly
corresponds to Mala fides or Mala fide possessio m the sphere of
Dominion and Real actions. Both imply a consciousness of wrong,
that is to say, Culpa in the larger sense in which it comprehends
Dolus: with this reservation, that Mora'is an omission or negative
act, which sometimes arises, not from want of will, but from want
of means or ability to pay ; whereas Mala fide possessio is a positive
act that is always wilful and dolose. Both Mora, then, and Mala
fide possessio have a delictual character. Bona fides, or tlie absence
of dolus, is consistent with the absence of diligentia, i.e. the pre-
sence of culpa.
Litis Contestatio, the first stage in an action, another landmark
of great importance in Roman jurisprudence in ascertaining, and
measuring the sanctioning rights and obligations of suitors, 3 § 180,
is a kind of bilateral Disposition which may be classed among
Quasi-contracts, and, except when merely frivolous and vexatious,
is entirely devoid of delictual character. The consequences, how-
U2
292 DE RERUM UNIVERSITATIBUS. [nz §§ 260-289.
ever, of Litis contestatio, in spite of this difference of character, are
similar to those of Mora and Mala fide possessio. For, in order to
save a plaintiff from being ruined by the duration of a trial, Litis
contestatio is supposed to be followed immediately by judgment; .
or, in other words, Litis contestatio entitles him, in respect of
fructus and usurae, to all the rights to which he is entitled by
lata sententia.
$ 283. Money paid by mistake was not recoverable when the
payer was liable to be sued for double damages, Inst. 8, 27, 7,
because then the payment is not deemed to be a mistake, but a com-
promise, in order to avoid the chance of condemnation in double
damages. The laws protecting certain rights by duplication of
damages, 4 § 171, would have been evaded if a defendant was allowed
to pay the simple damages and then attempt to recover them back
by condictio indebiti soluti. |
$ 285. So by English law aliens were not, till recently, allowed
to purchase land or to take land by devise. Land purchased by an
alien or devised to an alien was forfeited to the crown. An alien,
however, could hold personal property and take bequests of personal
property. In France, formerly, an alien was not allowed to make
& wil, but all his property at his death escheated to the crown
by the droit d'aubaine. [Aubain is from alibanus. Alibi in bar-
barous Latin produced alibanus, just as longiter produced lontanus
and ante antianus, Diez.]
$ 289. Justinian abolished the distinction between legacies and
trusts, enacting that legacies should no longer be governed by the
rigours of the civil law, but subject to the same rules and construed
with the same liberality as trusts, Inst. 2, 20, 8. "Trusts being a
matter of the praetor's cognitio extraordinaria cannot, properly
speaking, be called a subject of Bonae fidei actio, for actio implies
the cognizance of a judex: but the principles of cognitio extraor-
dinaria were doubtless the same as those of bonae fidei actio. With
this reservation, then, we may say that legata sinendi modo and per
damnationem were before Justinian's time recoverable by stricti
juris actio, and after his time by bonae fidei actio.
By English law, a will of lands operates as a mode of conveyance
requiring no extrinsic sanction to render it available as & document
of title. A will of personalty requires for its authentication to be
proved before a court by the oath of the executor and, unless the
attestation clause is in a certain form, by the affidavit of one of the
11. $$ 260-289. ] MORA, 293
subscribing witnesses; or, if the validity of the will is disputed, by
examination of the witnesses on oath in the presence of the parties
interested. The will itself is deposited in the registry of the Court
of Probate; a copy of it in parchment, under the seal of the Court
of Probate, delivered to the executor along with a certificate of
proof, is the only proper evidence of his right to intermeddle with
the personal estate of the testator.
The following were the corresponding formalities of Roman law
prescribed by lex Julia vicesimaria : Paulus, Sent. Rec. 4, 6 :—
‘A will is opened in the following manner: the witnesses, or the
majority, who affixed their seals, are summoned and acknowledge
their seals, the cord is broken, the tablets are opened, the will is
read, a copy is taken, a public seal is affixed to the original, and it
is deposited in the archives, so that if the copy is ever lost there
may be a means of making another.
‘In municipalities, colonies, towns, prefectures, wicks, castles,
staples, a will must be read in the forum or basilica, in the presence
of the attesting witnesses or of respectable persons, between eight
o’clock in the morning and four o’clock in the afternoon; and, as
soon as a copy has been made, must be sealed up again by the
magistrate in whose presence it was opened.
‘A will is intended by the law to be opened immediately after
the death of the testator; accordingly, though rescripts have
varied, it is now the rule that, if all the parties are present, three
or five days is the interval within which the tablets must be
opened ; if they are absent, the same number of days after they are
assembled; in order that heirs, legatees, manumitted slaves, and
the military treasury (entitled, 3 § 125, to vicesima hereditatum,
i.e. 5 per cent. on the value of Roman citizens’ testamentary suc-
cessions), may come into their rights without unnecessary delay.’
In eases of urgency, when the will was opened in the absence
of the attesting witnesses in the presence of respectable persons, it
was afterwards forwarded to the witnesses for the verification of
their seals, Dig, 29, 8, 7. Every one who desired it had the power
of inspecting a will and taking a copy, Dig. 29, 8, 8.
BOOK III.
DE RERUM UNIVERSITATIBUS ET DE
OBLIGATIONIBUS.
DE HEREDITATIBUS QUAE AB INTESTATO DEFERUNTUR.
$ 1. 7ntestatorum hereditates (ex,
lege X11 tabularum primum ad suos
heredes pertinent.
§ 2. Sut autem heredes existi-
mantur liberi qui in potestate mort-
entis. fuerent, ueluti. filius. filiaue,
nepos neptisue (ex fito), pronepos
proneptisue ex nepote filio nato prog-
natus prognataue, nec $nterest,
(utrum) naturales (sint) liberi an
adoptiui, ita demum tamen nepos
meptisue et pronepos proneptisue
suorum heredum numero sunt, st
praecedens persona destertt (tn po-
testate parentis esse, siue morte 1d
acciderit, ) siue alia ratione, uelute
emancipatione. nam si per td tem-
pus quo quisque moritur, filius in
potestate eius. sit, nepos ex eo suus
heres esse non polest. idem el. in
ceteris. deinceps. liberorum | personis
dictum tntellegemus,
$3. Vaor quoque quae in manu
est, sua heres est, quia filiae loco est.
item nurus quae in filii manu est,
nam et haec neptis loco est. sed ita
demum erit sua heres, (st) filius
euius in manu fuerit, cum pater
moritur, in potestate eius non sit.
idemque dicemus et de ea quae in
$ 1. Intestate successions by the
law of the Twelve Tables devolve
first to self-successors.
$ 2. Self-successors are children
in the power of the deceased at the
time of his death, such as & son or
a daughter, a grandchild by a son,
a great-grandchild by a grandson by
& son, whether such children are
natural or adoptive: subject, how-
ever, to this reservation, that a
grandchild or great-grandchild is
only self-succescor when the person
in the preceding degree has ceased
to be in the power of the parent
either by death or some other
means, such as emancipation ; for
instance, if a son was in the power
of the deceased at the time of his
death, a grandson by that son can-
not be & self-successor, and the
same proviso applies to the subse-
quent degrees.
§ 3. A wife in the hand of the
deceased is a self-successor, for she
is @ quasi daughter; also a son's
wife in the hand of the son, for she
is & quasi granddaughter : subject,
however, to the proviso that she is
not self-successor if her husband is
in the power of his father at the
mz. §§ 1-8.]
nepotis manu malrimonii causa sit,
quia proneptis loco est.
$4. Postumi quoque (qui) &
wiuo parente nati essent, in potes-
tale eius. futuri forent, sui heredes
sunt.
$ 5. Jdem turis est de his
nomine ex lege Aelia Sentia uel ex
senatusconsulto post mortem patris
causa probatur. nam et hi uiuo
patre causa probata in potestate
eius futuri essent.
$ 6. Quod etiam de eo filio qui
ex prima secundaue mancipatione
post mortem patris manumittitur,
intellegemus.
§ 7. Igitur cum filius filiaue ‘et
ex altero filio nepotes neptesue ex-
tant, pariter ad hereditatem uocan-
ter; nec qui gradu proximior est,
ulteriorem excludit. aeqwum enim
uidebatur nepotes neptesue in patris
sui locum portionemque succedere.
peri ratione et si nepos neptisue sit
ex filio et ex nepote pronepos pro-
neptisue, simul omnes uocantur ad
hereditatem.
$8. Et quia placebat nepotes
neptesue, item pronepotes pronep-
tesue in parentis sui locum suc-
cedere, conueniens esse ulsum est
non in capita, sed (in) stirpes he-
reditatem diuidi; ita ut fihus par-
tem dimidiam hereditatis ferat et
ex altero filio duo pluresue nepotes
alteram dimidiam; item si ex duo-
bus filiis nepotes extent, ex altero
filio unus forte uel duo, ex altero
tres aut quattuor, ad unwm aut ad
duos dimidia pars pertineat et ad
tres aut quattuor altera dimidia.
DE HEREDITATIBUS, ETC. -
295
time of his father's death. A wife
in the hand of a grandson is a self-
successor, subject to the same pro-
viso, because she is a quasi great-
granddaughter.
$ 4. After-born children, who, if
born in the lifetime of the parent,
would have been subject to his
power, are self-successors.
$ 5. Also those in whose behalf
the provisions of the lex Aelia
Sentia (1 § 32) or the senatuscon-
sult have been satisfied by proof of
excusable error subsequently to the
death of the parent, for if the error
had been proved in the lifetime of
the parent they would have been
subject to his power.
$ 6. Also, a son, who has under-
gone a first or second mancipation
and is manumitted after the death
of the father, is & self-successor.
$ 7. Accordingly, & son or
daughter and grandchildren by an-
other son are called contemporane-
ously to the succession; nor does
the nearer grade exclude the more
remote, for justice seemed to dic-
tate that grandchildren should suc-
ceed to their fathet’s place and
portion. Similarly, a grandchild by
8 son and a great-grandchild by
& grandson by a son are called con-
temporaneously to the succession.
§ 8. And as it was deemed to be
just that grandchildren and great-
grandchildren should succeed to
their father’s place, it seemed con-
sistent that the number of stems,
and not the number of individuals,
should be the divisor of the suc-
cession ; so that a son should take
& moiety, and grandchildren by
another son the other moiety; or
if two sons left children, that a
single grandchild or two grand-
children by one son should take
one moiety, and three or four
grandchildren by the other son the
other moiety.
296
DE RERUM UNIVERSITATIBUS.
[nr. $$ 9-17.
$1. The words testate? and ‘intestate,’ in the language of
English lawyers, are only applicable, I believe, to a deceased per-
s00.
The awkwardness of having no corresponding adjectives
to couple with succession must be my apology for sometimes
speaking of testate or intestate succession.
For the meaning of suus heres, see commentary on 2 § 157 and
2 § 128.
DE LEGITIMA AGNATORUM SUCCESSIONE.
§ 9. Si nullus sit suorum here-
dum, tunc hereditas pertinet ex
eadem lege xii tabularum ad ag-
natos.
$ 10. Vocantur autem agnati qui
legitima cognatione iuncti sunt.
legitima autem cognatio est ea quae
per uirilis sezus personas contungi-
tur. itaque eodem patre nati fratres
agnatz stbt sunt, qui etiam consan-
guinet uocantur, nec requiritur an
etiam matrem eandem habuerint.
item patruus fratris filio et inuicem
is illi agnatus est. eodem numero
sunt fratres patrueles inter se, id
est qui duobus fratribus progene-
rati sunt, quos plerique etiam con-
sobrinos uocant. qua ratione scilicet
eliam ad plures gradus agnationis
peruenire poterimus,
$ 11. Non tamen omnibus simul
agnatts dat lex xii tabularum here- .
ditatem, sed his qui tum cum cer-
tum est aliquem intestatum deces-
81886, proximo gradu sunt.
$12. Nec in eo iure successio
est. ideoque si agnatus proximus
hereditatem omiserit, uel antequam
adierit, decesserit, sequentibus nihi]
luris ex lege conpetit.
$13. Ideo autem non mortis
tempore quis proximus fuerit re-
quirimus, sed eo tempore quo cer-
tum fuerit, aliquem intestatum de-
cessisse, quia si quis testamento
§ 9. If there is no self-successor,
the succession devolves by the same
law of the Twelve Tables to the
agnates.
§ 10. Agnates are statutory cog-
nates. Statutory cognates are kin-
dred related through males. Thus
brothers by the same father are ag-
nates, though by different mothers,
and are called consanguineous ;
and a fathers consanguineous
brother is agnate to the nephew,
and vice versá; and the sons of
consanguineous brothers, who are
called consobrini, are mutual ag-
nates; so that there are various
degrees of agnation.
$ 11. Agnates are not called all
contemporaneously to the succes-
sion by the law of the Twelve
Tables, but only those of the nearest
degree at the moment when it is
certain that the deceased is in-
testate.
$ 12. And in title by agnation
there is no advancement of grades ;
that is to say, if an agnate of the
nearest grade decline the succession,
or die before acceptance, the agnates
of the next grade do not become
entitled under the statute.
$13. The date for determining
the nearest te is not the mo-
ment of death, but the moment
when intestacy is certain, because
it seemed better, when a will is left,
ni. $$ 9-17.]
facto decesserit, melius esse uisum
est tunc requiri proximum, cum cer-
ium esse coeperit neminem ex eo
testamento fore heredem,
$14. Quod ad feminas tamen
attinet, in hoc iure aliud in ipsa-
rum hereditatibus capiendis placuit,
aliud in ceterorum [bonis] ab his
capiendis. nam feminarum heredt-
tutes proinde ad nos agnationis iure
redeunt atque masculorum ; nostrae
uero hereditates ad feminas ultra
consanguineorum gradum non per-
tinent. itaque soror fratri sororiue
legitima heres est, &mita uero et
fratris filia legitima heres esse (non
potest. sororis autem nobis loco est)
etiam mater aut nouerca quae per in
manum conuentionem apud patrem
nostrum iura filiae nacta est.
$ 15. Si ei qui defunctus erit, sit
frater et alterius fratris filius, sicut
ex superioribus intellegitur, frater
potior est, quia gradu praecedit.
sed alia facta est iuris interpretatio
inter suos heredes,
$ 16. Quodsi defuncti nullus fra-
ter extet, (sed) sint liberi fratrum,
ad omnes quidem hereditas pertinet ;
sed quaesitum est, si dispari forte
numero sipt nati, ut ex uno unus
uel duo, ex altero tres uel quattuor,
utrum in stirpes diuidenda sit here-
ditas, sicut inter suos heredes iuris
est, an potius in capita. iam dudum
tamen placuit in capita diuidendam
esse hereditatem. | itaque quotquot
erunt ab utraque parte personae, in
tot portiones hereditas diuidetur,
ita ut singuli singulas portiones
ferant.
$ 17. Si nullus agnatus sit, eadem
lez xii tabularum gentiles ad here-
DE AGNATORUM SUCCESSIONE.
297
io take the nearest agnate at the
moment when it is ascertained that
there will be no testamentary suc-
cessor.
§ 14. As to females, the rules of
titles by descent are not the same in
respect of the successions which
they leave and in respect of the
successions which they take. An
inheritance left by a female is ac-
quired by a male by the same title
of agnation as an inheritance left
by a male, but an inheritance left
by a male does not devolve to fe-
males beyond sisters born of the
same father. Thus a sister succeeds
to a sister or brother by the same
father, but the sister of a father and
daughter of a brother have no sta-
tutory title by descent. The rights
of quasi sister belong to a mother
or stepmother who passes into the
hand of a father by marriage and
acquires the position of a quasi
daughter.
§ 15. If the deceased leaves a
brother and another brother's son,
as observed before (§ 11), the bro-
ther has priority, because he is
nearer in degree, which differs from
the rule applied to self-successors.
§ 16. If the deceased leaves no
brother, but children of more than
ove brother, they are all entitled to
the succession; and it was once a
question, in case the brothers left
an unequal number of children,
whether the number of stems was
to be the divisor of the inheritance,
as among self-successors, or the
number of individuals; however, it
has long been settled that the di-
visor is the number of individuals.
Accordingly, the total number of
persons determines the number of
parts into which the inheritance
must be divided, and each indivi-
dual takes an equal portion.
§17. In the absence of agnates the
same law of the Twelve Tables calls
298
ditatem uocat. qui sint autem gen-
tiles, primo commentario rettuli-
| mus; et cum illic admonuerimus
totum gentilictum ius in desuetu-
dinem abiisse, superuacuum est hoc
DE RERUM UNIVERSITATIBUS.
[1rr. $$ 9717.
the gentiles to the succession. Who
are gentiles was explained in the
first book, and as we then stated
that the whole law relating to gen-
tiles is obsolete, it is unnecessary to
quoque loco de eadem re curiosius
go into its details on the present
tractare.
occasion.
$ 9. The term agnatio has already occurred (2 § 131, cf. 1, 156)
in the exposition of testacy, where it denoted the birth of a suus
heres, and in the doctrine of intestacy it has the same signification.
The same persons who in relation to a common ancestor are sul
heredes, in relation to one another are agnati. Agnates, accordingly,
may be described as all the members of a family ; but then we must
add that the family may either be actual or ideal, meaning by ideal
either a family once actual but disintegrated by the death of the
ancestor, or a family purely imaginary. While the common an-
cestor survives, the bonds of agnation are close, and the family is
actual ; after his death, when his descendants have formed separate
families, all the members of those families are still agnates, because
they are members of an ideal family which once was actual; and
the descendants of those descendants are more remotely agnates,
because, though never members of an actual family, they would
have been so if the common ancestor had lived for, say, a hundred.
or a thousand years.
The words of the Twelve Tables creating title by agnation are
as follow: Si intestato moritur cui suus heres nee escit, adgnatus
proximus familiam habeto. ‘If a man die intestate leaving no
self-successor, his nearest agnate (the nearest self-successor of one
of his ancestors) shall have the succession.’
$10. Consanguinei, brothers or sisters of the same father,
opposed to uterini, brothers or sisters by the same mother, are
properly included among agnates, being agnates of the first degree;
but sometimes the word ‘agnates’ specifically denotes the subse-
quent degrees, and as females were only entitled to inherit by the
first degree of agnation, § 14, the word ‘agnates’ was further
limited to denote male agnates. Agnati autem sunt cognati virilis
sexus per virilem descendentes, Paulus, Sent. Rec. 4, 8, 13. ‘ Agnates
are male cognates related through males.'
$12. If the nearest degree of agnates in existence repudiated
the succession, or died before acceptance, the succession did not
devolve to the next degree of agnates, but passed by a different title
nr.$$9-17.]] DE AGNATORUM SUCCESSIONE. 299
to a different order of claimants, namely, to cognates, or next of
kin, Ulpian, 26,5. This rule was a scrupulous interpretation of the
exact words of the Twelve Tables: Si intestato moritur cui suus
heres nec escit, adgnatus prowimus familiam habeto. No innovation
in this respect was introduced by the praetors, whose policy was to
prefer the natural title of cognation to the civil title of agnation.
Justinian, however, abolished the rule, and allowed a devolution
through the degrees of agnation, on the ground that, as the burden
of tutela devolved through the degrees of agnation, there ought to
be a corresponding and compensating devolution of the advantages
of inheritance, Inst. 3, 2, 7. This change, however, was deprived
of importance by the subsequent Novella, 118, which introduced an
entirely new system of succession, governed solely by cognatio.
§ 13. The moment at which it is ascertained that the deceased is
intestate will be separated by an interval from the moment of his
decease, whenever the intestacy is caused by the repudiation or in-
capacitation of the devisee, or the failure of the condition on which
he was instituted. In this interval the nearest agnate may die,
and a remoter agnate become the nearest agnate. It therefore was
necessary to determine whether the title of nearest agnate is ac-
quired at the moment of decease or of ascertained intestacy; and
the latter moment was selected. If the death of the testator had
been selected, then, if the nearest agnate died in the interval, there
would be no heir; neither the then next agnate, as proxumus, the
word used in the Twelve Tables, excludes successio graduum: nor
the gentiles, as the words: si agnatus nec escit, exclude successio
ordinum.
§ 14. The limitation, m respect of females, of title by agnation
to females who were agnates in the first degree (consanguineae) was
not contained in the Twelve Tables, but introduced by the jurists as
an interpretation of the lex Voconia (B.c. 168), Paulus, Sent. Rec.
4,8, 22. Inst. Just, 3,2,3. The harshness of this limitation was
mitigated by the praetors, who introduced title by cognation, and
allowed females of remoter degrees of agnation to succeed in the
order of cognates in default of successors by title of agnation ; but
Justinian totally abolished the limitation, and restored the rule of
the Twelve Tables, allowing females to succeed in the order of
agnates, however remote might be their degree of agnation, pro-
vided that no nearer degree was in existence.
The celebrated Novella, 118, as above stated, totally abolished
300
DE RERUM UNIVERSITATIBUS. [11.$$18-38.
title by agnation, and made succession by intestacy entirely de-
pendent on the degrees of cognation or natural relationship.
BONORUM POSSESSIO INTESTATI.
$ 18. Hactenus lege Xii tabula-
rum finitae sunt intestatorum here-
ditates. quod ius quemadmodum
strictum fuerit, palam estintellegere.
$19. Statim enim emancipati
liberi nullum ius in hereditatem
parentis ex ea lege habent, cum de-
sierint sui heredes esse.
$20. Idem iuris est, si ideo liberi
non sint in potestate patris, quia
sint cum eo ciuitate Romana donati,
nec ab imperatore in potestatem
redacti fuerint.
$21. Item agnati capite deminuti
non admittuntur ex ea lege ad here-
ditatem, quia nomen agnationis
capitis deminutione perimitur.
$ 22. Item proximo agnato non
&deunte hereditatem nihilo magis
sequens iure legitimo admittitur.
$23. Item feminae agnatae quae-
cumque consanguineorum gradum
excedunt, nihil iuris ex lege habent.
$ 24. Similiter non admittuntur
cognati qui per feminiui sexus per-
sonas necessitudine iunguntur; adeo
quidem, ut nec inter matrem et
filium filiamue ultro citroque here-
ditatis capiendae ius conpetat, prae-
terquam si per in manum conuen-
lionem consanguinitatis iura inter
eos constiterint.
$ 25. Sed hae iuris iniquitates
edicto praetoris emendatae sunt.
$ 26. Nam beros omnes qui le-
gitimo iure deficiuntur, uocat ad
hereditatem, proinde ac si in potes-
$ 18. These are all the provisions
in the law of the Twelve Tables
for intestate devolution, and how
barshly they operated is petent.
$ 19. For instance, emancipated
children forfeit all title to the suc-
cession of their parent by being
divested of the character of self-
BUCCESSOTS.
§ 20. So do children whose free-
dom from the power of their parent
only resulted from their receiving
jointly with their father a donation
of Roman citizenship (1 § 94), with-
out a fiat of the emperor subjecting
them to parental power.
§ 21. Again, agnates who have
descended in status are barred from
the succession under the statute,
title by agnation being extinguished
by descent in status.
$ 22. And if the nearest agnate
renounces a succession the next de-
gree, according to the statute, is not
a whit the more entitled to succeed.
§ 23. Female agnates beyond the
degree of sisters by the same father
have no title to succeed under the
statute [as restricted by the anti-
female spirit which found expres-
sion in the lex Voconia].
§ 24. Cognates who trace their
kin through females are similarly
barred, so that even a mother and
a son or daughter have no re-
ciprocal right of succession, unless
by subjection to the hand of the
husband the mother has become
& quasi gister to her children.
$ 25. But to these legal inequali-
ties the edict of the praetor ad-
ministers a corrective.
$ 26. All children whose statutory
title fails are called by the praetor
to the succession, just as if they had
nr$$18-38.] BONORUM POSSESSIO INTESTATI.
iate parentis mortis tempore fuis-
sent, siue soli sint siue etiam sui
heredes, id est qui in potestate
petris fuerunt, concurrant.
$ 27. Agnatos autem capite de-
minutos non secundo gradu post
suos heredes uocat, id est non eo
gradu uocat quo per legem uocaren-
tur, si eapite deminuti non essent,
sed tertio proximitatis nomine;
licet enim capitis deminutione ius
legitimum perdiderint, certe cog-
nationis iura retinent. itaque si
quis alius sit qui integrum ius ag-
nationis habebit, is potior erit,
etiamsi longiore gradu fuerit.
$ 28. Idem iuris est, ut quidam
putant, in eius agnati persona, qui
proximo agnato omittente heredita-
tem nihilo magis iure legitimo ad-
mittitur. sed sunt qui putant hunc
eodem gradu a praetore uocari, quo
etiam per legem agnatis hereditas
datur.
$ 29. Feminae certe agnatae quae
consanguineorum gradum excedunt,
tertio gradu uocantur, id est si ne-
que suus heres neque agnatus «ullus
erit.
$ 30. Eodem gradw uocantur et-
iam eae personae quae per feminini
sexus personas copulatae sunt.
$ 31. Liberi quoque qui in ad-
optiua familia sunt, ad naturalium
parentum hereditatem hoc eodem
gradu uocantur.
$ 32. Quos autem praetor uocat
ad hereditatem, hi heredes ipso qui-
dem iure non | fiunt; nam praetor
heredes facere non potest ; per legem |
enim tantum uel similem iuris con-
sittutionem heredes fi|unt, ueluti per
senatusconsultum et constitutionem
principalem. sed cum es praetor
301
been in the power of their parent
at tbe time of his decease, whether
they come alone or in concurrence
with self-successors, that is, with
other children who were subject to
the power of the parent.
§ 27. Agnates who have de-
scended in status are called by the
praetor, not indeed in the next
degree to self-successors, that is, in
the order in which the statute would
have called them but for their loss
of status, but in the third rank
under the designation of cognates
(next of kin); for though their
descent in status has blotted out
their statutory title, they neverthe-
leas are still entitled as cognates ;
but if another person exists with
unimpaired title by agnation, he is
called in preference, although he may
be an agnate in a remoter degree.
§ 28. The rule is similar, accord-
ing to some, in respect of the re-
moter agnate who has no statutory
title to succeed on the renunciation
of a nearer agnate; according to
others, the praetor calls him to the
succession in the order allotted by
the statute to agnates.
$ 29. Female agnates, at all
events, beyond the degree of sisters
are called in the third degree, that
is to say, after self-successors and
other agnates.
§ 30. So are those persons who
trace their kindred through females.
§ 31. Children in an adoptive
family are called to succeed their
natural parents in the same order.
§ 32. Those whom the praetor
calls to a succession do not become
successors at civil law, for the prae-
tor cannot make & successor; only
& law or similar ordinance can con-
stitute a successor, such as a decree
of the senate or an imperial con-
stitution; the praetor's grant of
302
(dat bonorum possessionem), loco
heredum constituuntur.
$ 33. |Adhuc autem etiam alios
conplures gradus praetor facit in|
bonorum possessionibus dandis, dum
id ag:t, ne quis sine successore |
mortatur. de quibus in his com-
mentariis consulto | non agimus, cum
hoc ius totum propriis commentariis
exlecutt simus.
$ 33a. Hoc solum admonuisse
sufficit | | tabulis
hereditatem |— inutdt-
osum per |in manum conuen-
tionem iura consanguinitates na|cta
| fratre
—|—(5 uersus in C legi nequeunt)
(8 wersus in C legi nequeunt)
| nam |_|
—|——— hereditas non pertine-|
(8 uersus in C legi nequeunt) |
. §336, Aliquando tamen neque
emendandi neque inpugnandi ueteris
turis sed | magis confirmandi gratia
pollicetur | bonorum — possessionem.
nam iliis quoque | qui recte facto
testamento heredes. institutt sunt, |
dat secundum tabulas bonorum pos-
gesstonem.
$34. dem ab intestato heredes
suos et agnatos ad bonorum posses-
sionem uocat. quibus casibus bene-
ficium eius in eo solo uidetur ali-
quam utilitatem habere, ut ?$ qui
ita bonorum possessionem petit,
interdicto cuius principium est
QVORVM BONORYM uti possit. culus
interdicti quae sit utilitas, suo loco
proponemus, alioquin remota quo-
que bonorum possessione ad eos
hereditas pertinet iure ciuili.
$ 35. Ceterum saepe quibusdam
ita datur bonorum possessio, ut is
cui data sit, (non) optineat heredi-
tatem ; quae bonorum possessio di-
citur sine re.
$36. Nam si uerbi gratia iure
“DE RERUM UNIVERSITATIBUS.
[rr. $$ 18-38.
possession only makes the grantee
& quasi successor.
$ 33. Several additional grades
of grantees of possession are recog-
nized by the praetor in his desire
that no one may die without a suc-
cessor; but I forbear to examine
them on the present occasion, be-
cause I have handled the whole sub-
ject of title by descent in a separate
treatise devoted to this matter.
§ 33a. [Sc. Tertullianum.]
$ 33 b. Sometimes, however, the
object of the praetor in granting
possession is rather to confirm the
old law than to amend or contradict
it, for he likewise gives juxta-
tabular possession to those who
have been instituted heirs in a
legally valid will.
§ 34. Besides these grantees,
when a man dies intestate, the
praetor grants possession to self-
successors and agnates, the only ad-
vantage they derive from the grant
being that it entitles them to the
interdict beginning with the words :
* Whatsoever portion of the goods’
(the use of which will be explained
in due time and place, 4 $ 144), for
independently of the grant of pos-
session, they are entitled to the
inheritance by the civil law.
$ 35. Possession is often granted
to a person who will not have quiet
enjoyment, and is then said to be
ineffective,
$ 36. For instance; if an heir
1m. §§ 18-38.] BONORUM POSSESSIO INTESTATI.
facto testamento heres institutus
creuerit hereditatem, sed bonorum
possessionem secundum tabulas tes-
tamenti petere noluerit, contentus
eo quod iure ciuile heres sit, nihilo
minus ii qui nullo facto testamento
ad intestati bona uocantur, possunt
petere bonorum possessionem; sed
sine re ad eos [hereditas] pertinet,
cum testamento scriptus heres euin-
cere hereditatem posait.
$ 37. Idem iuris est, si intestato
aliquo mortuo suus heres no|luerit
petere bonorum possessionem, con-
tentus legitimo ture let agnato
conpetit quidem bonorum possessio,
sed sine re, quia euinci hereditas
a suo herede potest. et [illud] con-
uenienter, si ad agnatum iure ciuili
pertinet hereditas et is adierit here-
ditatem, sed bonorum possessionem
petere noluerit, et si [quis ex proxi-
mis] cognatus petierit, sine re habe-
bit bonorum possessionem propter
eandem rationem.
$ 38. Sunt et alii quidam similes
casus, quorum aliquos superiore
commentario tradidimus.
308
appointed by a duly executed will
accepts the inheritance, but omits
to demand juxta-tabular possession,
contenting himself with his title
at civil law, those who without a
will would be entitled by descent
may nevertheless obtain a grant of
intestate possession, but the grant
will be ineffective, because they can
be evicted by the testamentary heir.
$ 37. The same happens when &
man dies intestate and a self-suc-
cessor omits to demand possession,
contenting himself with his statutory
title; for an agnate may obtain a
grant of intestate possession, but it
will be ineffective, because he can
be evicted by the self-successor.
Similarly, if an agnate entitled by
civil law accepts the succession but
omits to demand possession, & cog-
nate can obtain a grant of intestate
possession, but only ineffectively,
for the same reason.
§ 38. There are other similar
cases, some of which were mentioned
in the preceding book.
§ 25. To the divergence of the juristic (agnatio) and natural
(cognatio) families, to the desire, that is, to correct the non-
natural devolution of successions, Sir Henry Maine attributes the
introduction in Roman jurisprudence of Testamentary dispositions.
(Ancient Law, Ch. vi.)
§ 82. The praetor, as executive power :
(1) Gave possession to the person entitled by law, that is, en-
foreed the rights conferred on persons by the law; e.g. he gave
juxta-tabular possession to the testamentary heir, § 86, or contra-
tabular possession to praetermitted children, 2 § 125, or ab in-
testato possession to the suus heres or the agnate, § 37.
(2) He also gave possession to persons on whom the law had
conferred no rights, that is, he supplemented the law; e.g.in
default of sui heredes and agnates he granted ab intestato possession
to cognates; he gave juxta-tabular possession to the devisee under
@ will invalid at Civil law, because the testator had been incapaci-
tated at some period between the execution of his will and his
304 DE RERUM UNIVERSITATIBUS. [a §§ 18-38.
decease: this possession, however, was ineffective (sine re) against
any person entitled ab intestato by the Civil law, 2 § 149, and
Ulpian, 23, 6.
(3) He sometimes gave possession adverse to rights which the
law had conferred on other persons, that is, he contradicted or
corrected the law; e.g. he gave juxta-tabular possession to the
devisee under a will invalid at Civil law, from want of mancipation
or nuncupation, 2 6 149, He gave juxta-tabular possession to the
afterborn stranger (postumus alienus), Inst. 8, 9, pr. who, as an
uncertain person, could not be instituted by the Civil law, 2 § 242;
and he gave contra-tabular possession to the emancipated child
passed over in silence by a testator, 2 § 185.
As in the two latter functions of supplementing and correcting
the law, the praetor did what is elsewhere performed by courts of
equity, we have sometimes translated the contrasted terms heres and
bonorum possessor by the terms ‘legal successor’ and ‘equitable
successor.’
The equitable or praetorian successor could not sue or be sued
by the direct actions of the Civil law, but only by fictitious actions,
4684. The claim of a succession founded on a title at Civil law
was called hereditatis petitio; a claim founded on a purely prae-
torian title, e. g. cognation, was pursued by the Interdict Quorum
bonorum, or, in the latest period, by possessoria hereditatis petitio,
' Dig. 5, 5, 1. Such at least is Savigny’s view, who makes no
essential difference between the Interdict Quorum bonorum and
Possessoria hereditatis petitio. According to Vangerow, $ 509, the
Interdict was confined to the provisional purpose of obtaining
Possession: and Possessoria hereditatis petitio was the means of
claiming the inheritance when a claimant (e. g. cognatus or emanci-
patus) had a merely praetorian title; as Hereditatis petitio was
the means of claiming the civil inheritance. Accordingly the
Interdict could not be brought, like Hereditatis petitio, against
debtors to the inheritance ; but only against possessors of corporeal
hereditaments. Interdicto Quorum bonorum debitores hereditarii
non tenentur, sed tantum corporum possessores, Dig. 4, 8, 2, 2.
Debtors would be pursued by Possessoria hereditatis petitio, if they
disputed the creditor's right of succession; by actiones fictitiae,
4 § 84, if this was admitted.
$38. Huschke supposes that after euficit Gaius explained the
provisions of the S. C. Tertullianum. The orders or grades or
mz. § 18-38.} BONORUM POSSESSIO INTESTATI. 305
classes to whom the praetor successively granted bonorum possessio
in intestacy were as follow :
(1) Children (liberi), including not only sui heredes, but also
emancipated children, § 26, on condition that the latter brought
their goods into hotehpot (collatio bonorum), Dig. 37, 6. Children
given in adoption were not admitted in this order, but in the third
order of cognates, § 31.
(2) Statutory heirs (legitimi), i.e. all who were entitled to in-
herit under any statute; e.g. agnates who were entitled under the
Twelve Tables ; mothers, who were entitled to succeed their children
under the Sc. Tertullianum ; children, who were entitled to succeed
their mothers under the Sc. Orphitianum ; and sui heredes who had
repudiated or omitted to demand possession as members of the first
order within the interval allowed, namely, a year.
(3) Next of kin (proximi cognati) including those who had
neglected to claim in the first or second order.
(4) Husband and wife, when the wife is not in manu. A wife
in manu would be quasi daughter and therefore sua heres and
entitled to succeed with liberi in the first order.
These various grades of title are called unde liberi, unde legitimi,
unde cognati, unde vir et uxor, phrases which properly denote
those articles of the edict in which these classes are summoned
to the succession: ea pars edicti unde liberi vocantur, &c., but
are used by Roman lawyers as epithets of intestate bonorum
possessio.
The degrees of cognation in a direct line are the number of
generations that separate a descendant from an ascendant: to
compute the degrees of collateral cognation we must add the degrees
of direct cognation. Thus a man is one degree from his father,
and therefore two from his brother and three from his nephew.
He is two degrees from his grandfather, and therefore three from
his uncle and four from his first cousin or cousin german (con-
sobrinus). He is three degrees from his great-grandfather, and
therefore four from his great-uncle and five from his great-uncle's
son (propior sobrino) and six from his second cousin (sobrinus), that
is, his great-uncle's grandson, for second cousins are the children
of first cousins. He is seven degrees from his second cousin's
children, and this is the only case in which the seventh degree
of cognation was recognized as giving a title to succeed in in-
testacy, the law only recognizing in other lines the sixth degree of
X
' DE RERUM UNIVERSITATIBUS.
eognation. In English law collateral relationship is a title to
inheritance or succession without any limit.
$ 36. Originally the person entitled to the praetorian succession
was required to address a formal demand to the magistrate: but
under Justinian any signification of intention to accept the suc-
cession was sufficient without a demand. The interval allowed
for this signification of intention (agnitio) to a parent or child
of the defunct was a year, to other claimants a hundred days.
If a person in a superior order or degree omitted to signify his
acceptance in the interval allowed, the succession then devolved
to the next order or degree. If the person who thus omitted to
signify acceptance had only a praetorian title to the succession, his
right was entirely forfeited by the omission; but if he was entitled
at civil law he could evict the bonorum possessor, who accord-
ingly was said to have only a nugatory or ineffective possession
(sine re).
§ 38. We have already seen that the devisee under an un-
authorised will of a female, though he obtained juxta-tabular pos-
session, might be evicted by the person entitled as agnate, 2 § 119,
and that a devisee under a praetorian will might be evicted by a
devisee under a prior civil will or by a person entitled as agnate,
unless the sole informality of the praetorian will, which rendered it
invalid as a civil will, was the omission of mancipation or nuncu-
pation, 2 § 149.
306 [xu $$ 39-54,
DE SUCCESSIONE LIBERTORUM CIVIUM ROMANORUM.
$ 39. Nunc de libertorum bonis $ 39. Succession to freedmen next
uideamus. demands our notice.
§ 40. Olim itaque licebat liberto
patronum suum inpune testamento
praeterire. nam ita demum lex xit
tabularum ad hereditatem liberti
uocabat patronum, si intestatus
morteus esset libertus nullo suo
herede relicto. itaque intestato quo-
que mortuo liberto, si is suum here-
dem reliquerat, nihil in bonis eius
patrono iuris erat. et siquidem ex
naturalibus liberis aliquem suum
heredem reliquisset, nulla uidebatur
esse querella ; si uero uel adoptiuus
filius filiaue uel uxor quae in manu
esset, sua heres esset, aperte iniquum
erat nihil iurís patrono superesse.
$ 40. Freedmen were originally
allowed to pass over their patron
in their testamentary dispositions.
By the law of the Twelve Tables
the inheritance of a freedman only
devolved on his patron when he
died intestate and without leaving
a self-successor, If he died intes-
tate but left a self-successor, the
patron was excluded, and if the
self-successor was a natural child,
this was no grievance; but if the
self-successor was an adoptive child
or a wife in the hand, it was hard
that they should bar all claim of the
patron.
rr. $$ 39-54.]
$ 41. Qua de causa pcstea prae-
toris edicto haec iurts iniquitas
emendata est. siue enim faciat
testamentum libertus, iubetur ita
testarij ut patrono suo partem
dimidiam bonorum suorum relin-
quaf, et si aut nihil aut minus
quam partem dimidiam reliquerit,
datur patrono contra tabulas testa-
menti partis dimidiae bonorum
possessio ; si uero intestatus moria-
tur suo herede relicto adoptiuo filio
(uel) uxore quae in manu ipsius
esset, uel nuiw quae in manu filii
eius fuerit, datur aeque patrono
aduersus hos suos heredes partis
dimidise bonorum possessio. pro-
sunt autem liberto ad excludendum
patronum naturales liberi, non so-
lum quos in potestate mortis tem-
pore habet, sed etiam emancipati
et in adoptionem dati, si modo
aliqua ex parte heredes scripti sin,
aut praeteriti contra tabulas testa-
menti bonorum possessionem ex
edicto petierint; nam exheredati
nullo modo repellunt patronum.
$ 42. Postea lege Papia aucta
sunt iura patronorum, quod ad locu-
pletiores libertos pertinet. cautum
est enim ea lege, ut ex bonis eius
qui sestertiorum centum milium
plurisue patrimonium reliquerit, et
peuciores quam tres liberos habebit,
siue is testamento facto siue intes-
tato moriwus erit, uinlis pars
patrono debeatur. itaque cum unum
filium uvamue filiam heredem reli-
querit libertus, proinde pars dimidia
petrono debetur, ac si sine ullo filio
filiaue moreretur; cum uero duos
duasue heredes reliquerit, tertia
pers debetur ; si tres 1elinquat, re-
pellitur patronus.
$ 43. In bonis libertinarum nul-
lam iniuriam &ntiquo iure patie-
bantur patroni cum enim hae in
petronorum legitima tutela essent,
LIBERTI CIVES ROMANI.
307
$ 41. Accordingly, at a later
period, the praetor's edict corrected
this injustice of the law. If a freed-
man makes a will, he1s commanded
to leave a moiety of his fortune to
his patron; and if he leaves him
nothing, or less than a moiety, the
patron can obtain contra-tabular
possession of a moiety from the
praetor. If he die intestate, leav-
ing as self-successor an adoptive
sen or & wife in his hand or a son's
wife in the hand of his son, the
patron can obtain even against these
self-successors intestate possession
of a moiety from the praetor. The
freedman is enabled to exclude the
patron if he leaves natural children,
whether in his power at the time of
his death or emancipated or given
in adoption, provided he leaves them
any portion of the succession, or
that, being passed over in silence,
they demand contra-tabular pos-
session in pursuance of the edict ;
for, if they are disinherited, they do
not avail to bar the patron.
§ 42, At a still later period the
lex Papia Poppaea augmented the
rights of the patron against the
estate of more opulent freedmen.
By the provisions of this law when-
ever a freedman leaves property of
the value of a hundred thousand
sesterces and upwards, and not so
many as three children, whether he
dies testate or intestate, a portion
equal to that of & single child is due
to the patron. Accordingly, if a
single con or daughter survives, half
the estate is claimable by the patron,
just as if the freedman had died
childless ; if two. children iubent,
& third of the property belongs to
the patron; if three children sur-
vive, the patron is excluded.
$ 43. In successions to freed-
women no wrong could possibly be
done to the patron under the primi-
tive law ; for, as the patron was sta-
X2
308
non aliter scilicef testamentum fa-
cere poterant quam patrono auctore.
itaque siue auctor ad testamentum
faciendum factus erat | re-
lict fa|ctus erat, sequebatur
hereditas ; si uero auctor | ei factus
non erat, et intestata liberta morie-
bater, | ad per|tinebat. nec
enim ullus oim | posset. pa-
tronum a bonis libertae re|-
pellere.
§ 44. Sed postea lex Papia cum
quattuor liberorum iure libertinas
tutela patronorum liberaret, et eo
modo concederet eis etiam sine tu!-
toris auctoritate condere testamen-
tem, prospexit, | ut pro numero
liberorwn quos liberta mortis tem-
poe habuerit, uirilis pars patrono
debeatur. er|go ex bonis eius quae
| liberos reli la pos-
| hereditas ad patronum
sid
pertinet.
§ 45. Quae diximus de patrono,
eadem intellegemus et de filio pa-
troni ; item de nepote ex filio (et de)
pronepofe ex nepote flio nato pro-
gnato.
$ 46. Filia uero patroni et neptis
ex filio et proneptis ez nepote filio
nato prognata olim quidem eo iure
quod lege xii tabularum | patrono
datum est, sexus | patron-
orum liberos testamenti li-
berti (aut) ab intestato contra
filium adoptiuum uel uxorem nu-
rumue quae in manu fuerit, bonorum
possessionem petat, trium liberorum
iure lege Papia consequitur; aliter
hoc ius non habet,
$ 47. Sed ut ex bonis libertae
^tae quattuor liberos habentis
' pars ei debeatur, ne liber-
quidem iure consequitur, ut
DE RERUM UNIVERSITATIBUS.
[1n $$ 39-54.
tutory guardian of the freed woman,
ber will was not valid without his
authorization, so that, if he author-
ized & will, he either was therein
instituted heir, or, if not, had only
himself to blame: if he did not
authorize a will the freedwoman
died intestate, and he was assured
of the succession, for she could leave
no self-successor to bar the claim
of the patron.
§ 44. But when at a subsequent
period, by the enactment of the lex
Papia, four children were a title
that released a freedwoman from the
guardianship of her patron, so that
his autborization ceased to be ne-
cessary to the validity of her will,
the same law gave the patron a
contra-testamentary claim to a por-
tion of her estate equal to that of a
single child. If she died worth roo
sestertia, the lex Papia gave him
& contra-testamentary claim to
half [1]. If she died intestate, what-
ever she left, he is her sole successor.
§ 45. What has been said of the
patron applies to a son of the patron,
a grandson by a son, a great grand-
son by a grandson by a son.
$ 46. Although a daughter of a
patron, a granddaughter by a son,
a great-granddaughter by a grand-
son by a son have under the statute
of the Twelve Tables identical rights
with the patron, the praetorian edict
only calis the male issue to the
succession : but the lex Papia gives
& daughter of the patron a contra-
testamentary or intestate claim
against an adoptive child, ora wife,
or a son’s wife to a moiety of the
heritage if she is entitled as mother
of three children; a daughter not
so entitled has no claim.
§ 47. In the succession to a tes-
tate freedwoman mother of four chil-
dren a patron’s daughter mother of
three children is not always entitled
rn. $$ 39-54. ]
quidam putant. sed tamen inte-
stata liberta mortua uerba legis
Papiae faciunt, ut ei uirilis pars
debeatur. si uero testamento facto
mortua sit liberta, tale ius ei datur,
quale datum est contra tabulas
testamenti liberti, id est quale et
uirilis sexus patronorum liberi con-
tra tabulastestamenti liberti habent;
quamuis parum diligenter ea pars
legis scripta sit.
$ 48. Ex his apparet extraneos
heredes patronorum longe remotos
esse ab omni eo iure, quod uel in
tntestatorum bonis uel contra tabu-
las testamenti patrono conpetit.
$ 49. Putronse olim ante legem
Papiam hoc solum ius habebant in
bonis libertorum, quod etiam pa-
tronis ex lege Xii tabularum datum
est. nec enim ut contra tabulas
testamenti ingrati liberti uel ab in-
testato contra filium adoptiuum uel
uxorem nurumue bonorum posses-
sionem partis dimidiae peterent,
praetor similiter ut de patrono li-
berisque eius curabat.
$ 50. Sed lex Papia duobus
liberis honoratae ingenuae patronae,
hbertinae tribus, eadem fere iura
dedit quae ex edicto praetoris pa-
troni habent; tnum uero liber-
orum iure honoratae ingenuse pa-
tronae ea iura dedit, quae per ean-
dem legem patrono data sunt;
libertinae autem patronae non idem
iuris praestitit.
$ 51. Quod autem ad libertin-
arum bona pertinet, siquidem in-
testatae decesserint, nihil noui pa-
tronae liberis honoratae lex Papia
praestat. itaque si neque ipsa
patrona neque liberta capite demi-
nuta sit, ex lege XII tabularum ad
LIBERTI CIVES ROMANI.
309
[like his sons] to the portion of a
child, as some suppose : but, if the
freed woman die intestate, the letter
of the lex Papia gives her the portion
of a child; if the freedwoman die
testate, the patron's daughter has
the same title to contra-tabular
possession as she would have against
the will of a freedman, that is, as
the praetorian edict confers on a
patron and his sons in respect of the
heritage of a freedman, [viz. a claim
to half against all but natural chil-
dren] though this portion of the law
is carelessly written.
§ 48. It is apparent that the ex-
ternal heir of a patron is utterly
destitute of title by patronage,
whether a freedman die testate or
intestate.
§ 49. Patronesses, before the lex
Papia was passed, had only the
same rights against the estate of
their freedmen as patrons under the
statute of the Twelve Tables: nei-
ther by contra-tabular possession
against a will of an ungrateful
freedman, nor by intestate posses-
sion against the intestate claim of an
adoptive child or a wife or a son’s
wife could they, like the patron or
the patron’s son, obtain a moiety of
a heritage left by a freedman.
§ 50. But subsequently by the
lex Papia two children entitle a
freeborn patroness, three children
a manumitted patroness, to nearly
the same rights as the edict confers
on & patron; and three children
entitle a freeborn patroness to the
rights which the lex Papia confers
on & patron: a manumitted pa-
troness is never so entitled.
§ 51. As to the successions of
freedwomen who die intestate, no
new right is conferred on a patroness
through the title of children by the
lex Papia [which in this case only
mentions patroni filia, § 47]; accord-
ingly, if neither the patroness nor
310
eam hereditas pertinet et exclud-
untur libertae liberi; quod iuris
est etiam si liberis honorata non sit
patrona; numquam enim, sicut su-
pra diximus, feminae suum heredem
habere possunt. si uero uel huius
uel illius capitis deminutio inter-
uenlat, rursus liberi libertae ex-
cludunt patronam, quia legitimo
iure capitis deminutione perempto
euenit, ut liberi libertae cognationis
iure potiores habeantur,
$ 52. Cum autem testamento
facto moritur liberta, ea quidem
patrona quae liberis honorata non
est, nihil iuris babet contra libertae
testamentum; ei uero quae liberis
honorata sit, hoc ius tribuitur per
legem Papiam, quod habet ex edicto
patronus contra tabulas liberti.
$ 53. |Eadem lex patronae filio
liberis honorato————— | patroni iura
dedit; sed in huius persona etiam
unius filà filiaeue ius sufficit.
$ 54. Hactenus omnia iura
quasi per indicem tetigisse satis est ;
alioquin diligentior interpretatio
propriis commentariis exposita est.
DE RERUM UNIVERSITATIBUS.
(aur. $$ 39-54.
the freedwoman has descended in
status [$ 84, comm.], the law of
the Twelve Tables transmits the
Succession to the patroness, and
excludes the freed woman's children,
even when the patroness is child-
less; for & woman, as before re-
marked, can never have a self-suc-
cersor: but if either of them has
descended in status, the children
of the freedwoman exclude the pa-
troness, because her statutory title
is obliterated by the descent in
status, and the children are admit-
ted as next of kin.
§ 52. When a freedwoman dies
testate, a patroness not entitled by
children has no right of contra-
tabular possession: but a patroness
entitled by children has conferred
upon her by the lex Papia the same
right to a moiety by contra-tabular
possession as the praetorian edict
confers on the patron against the
heritage of a freedman.
§ 53. By the same law a pa-
troness’s son duly entitled by
children has the rights of a patron
[ patroness? |, but in this case one son
or daughter is a sufficient title.
§ 54. This summary indication
of the rules of succession to freed-
men and freedwomen who have
the plenary franchise may suffice
for the present occasion: a more
detailed exposition is to be found
in my separate treatise on this
branch of law.
§ 64. Gaius wrote a treatise in fifteen books, Ad leges Juliam et
Papiam, from which there are thirty extracts in the Digest ; another
in ten books, Ad edictum urbicum; and another in three books,
De manumissionibus : to any of which he may allude.
DE BONIS LIBERTORUM LATINORUM.
$ 55. Sequitur ut de bonis La-
tinorum libertinorum dispiciamus.
$ 56. Quae pars iuris ut mani-
festior fiat, admonendi sumus, id
$ 55. We proceed to the succes-
sions of Latini Juniani.
$ 56. To understand this branch
of law we must recollect what has
quod alio loco diximus, eos qui nunc been already mentioned (1 $ 22),
ri. $$ 55—76.]
Latini Iuniani dicuntur, olim ex
iure Quiritium seruos fuisse, sed
auxilio praetoris in libertatis forma
Beruari solitos; unde etiam res
eorum peculii iure ad patronos per-
tinere solita est; postea uero per
legem Iuniam eos omnes quos prae-
tor in libertate tuebatur, liberos
esse coepisse et appellatos esse
Latinos Iunianos; Latinos ideo,
quia lex eos liberos perinde esse
uoluit atque [si essent ciues Romani
ingenui] qui ex urbe Roma in
Latinas colonias deducti Latini colo-
niarti esse coeperunt; lunianos
ideo, quia per legem Iuniam liberi
facti sunt[, etiamsi non essent ciues
Romani]. legis itaque Iuniae lator
cum intellegeret futurum ut ea
fictione res Latinorum defunctorum
ad patronos pertinere desinerent,
quia scilicet neque ut serui decede-
rent, ut possent iure peculü res
eorum ad patronos pertinere, neque
liberti Latini hominis bona possent
manumissionis iure ad patronos
pertinere, necessarium existimauit,
ne ie beneficium istis datum in in-
patronorum conuerteretur,
cner [uci], ut bona eorum pro-
manumissores pertinerent,
ac si lex lata non esset ; itaque iure
quodammodo peculii bona Latino-
rum ad manumissores ea lege per-
tinent.
$ 57. Vnde accidit ut longe
differant ea iura quae in bonis
Latinorum ex lege Iunia constituta
sunt, ab his quae in hereditate
ciuium Romanorum libertorum ob-
seruantur.
$ 58. Nam ciuis Romani liberti
hereditas ad extraneos heredes pa-
troni nullo modo pertinet; ad filium
autem patroni nepotesque ex filio et
LIBERTI LATINI.
311
that those who are called Latini
Juniani were originally slaves by
law of the Quirites, though main-
tained by the praetor's protection
in & condition of quasi freedom, so
that their possessions belonged to
their patrons by the title of pecu-
lium. At a more recent period
[A.n. 19], when the lex Junia Nor-
bana was enacted, those whom the
praetor had protected i in quasi free-
dom became legally free, and were
called Latini Juniani: Latini, be-
cause the law assimilated their free-
dom to that of freeborn citizens of
Rome who, on quitting Rome for a
Latin colony, became Latin colo-
nists; Juniani, because the lex Junia
gave them liberty without citizen-
ship: and as the author of the lex
Junia foresaw that the effect of this
fiction would be that the goods of
deceased Latini Juniani would cease
to belong to the patron, as they
would not be slaves at the time
of their death, so that their goods
should belong to the patron by the
title of peculium, and the goods of
& freeborn Latin could not devolve
to him by title of manumission; he
deemed it necessary, to prevent the
favour to these freedmen from be-
coming a wrong to the patron, to
provide that their goods should
belong to the manumitter in the
same way as if the law had not
been enacted. Consequently the
goods of Latini Juniani belong to
their manumitters by the title of
quasi peculium.
§ 57. Accordingly there are wide
differences between the title to the
goods of Latini Juniani under the
lex Junia and the title to the suc-
cessions of freedmen possessed of
the plenary franchise.
$ 58. When a freedman pos-
sessed of the full franchise dies, an
external heir of the patron has no
claim on his succession, while a son
312
pronepotes ex nepote (Jilio nato)
prognatos omni modo pertinet, eti-
amsi (a) parente fuerint exheredati.
Latinorum autem bona tanquam
peculia seruorum etiam ad extra-
neos heredes pertinent, et ad liberos
manumissoris exheredatos non per-
tinent.
$ 59. Item ciuis Romam liberti
hereditas ad duos pluresue patronos
aequaliter pertinet, licet dispar in
eo seruo dominium habuerint ; bona
wero Latinorum pro ea parte per-
tinent, pro qua parte quisque eorum
dominus fuerit.
$ 60. Item in hereditate ciuis
Romani liberti patronus alterius
patroni filium excludit, et filius
patroni alterius patroni nepotem
repellit; bona autem Latinorum
[et ad ipsum patronum] et ad
alterius patroni heredem simul
pertinent, pro qua parte ad ipsum
manumissorem pertinerent.
$61. Item si unius patroni tres
forte liberi sunt et alterius unus,
hereditas ciuis Romani liberti in
capita diuiditur, id est tres fratres
ires portiones ferunt et unus quar-
tam; bona uero Latinorum pro ea
parte ad successores pertinent, pro
qua parte ad ipsum manumissorem
pertinerent.
$ 62. Item si alter ex his patronis
suàm partem in hereditate ciuis
Romani liberti spernat, uel ante
moriatur quam cernat, tota heredi-
tas ad alterum pertinet; bona autem
Latini pro parte defictentis patroni
caduca fiunt et ad populum per-
tinent.
DE RERUM UNIVEBSITATIBUS.
[ur. $$ 55-76.
of the patron, & grandson by & son
a great-grandson by a grandson by
a son, have an indefeasible claim
even after disinheritance ; whereas,
when a Latinus Junianus dies, his
goods are transmitted to his patron's
external heir, and the claim of the
patron’s children is barred by dis-
inheritance.
§ 59. A freedman with the ple-
nary franchise leaves several patrons
his cosuccessors in equal portions,
in however unequal proportions they
had been his proprietors ; whereas
the goods of a Latinus Junianus
belong to his patrons in the ratio
of the property which they had in
him when he was a slave.
§ 60. In the succession to a freed-
man who had the plenary franchise,
one patron bars another patron's
son, and & son of one patron bars
another patron's grandson; whereas
the goods of a Latinus Junianus
belong to a patron and another pa-
tron’s heir in the same proportions
in which they would have belonged
to the two patrons.
§ 61. If one patron leave three
sons, and another patron one, the
succession of a freedman who had
the plenary franchise is divided by
the number of individuals ; that is
to say, every one takes an equal
portion ; whereas the goods of a
Latinus Junianus belong to the sons
of the patrons, not in their own
right, but in right of representation ;
that is to say, in the proportion in
which they would have belonged to
the original manumitters. '
$ 62. If one patron renounce his
part in the inheritance of a freed-
man who had the plenary franchise,
or die before acceptance, the whole
inheritance belongs to the other;
but the goods of a Latinus J unianus
that would have descended to a de-
ceased patron are vacant and es-
cheated to the state.
1n. $$ 55-76. ]
§ 63. Postea Lupo et Largo con-
sulibus senatus censuit, ut bona
Letinorum primum ad eum perti-
nerent qui eos liberasset; deinde
ad liberos eorum non nominatim
exheredatos, uti quisque proximus
esset ; tunc antiquo iure ad heredes
eorum qui liberassent, pertinerent.
§ 64. Quo senatusconsulto quidam
(td) actum esse putant, ut in bonis
Latinorum eodem iure utamur, quo
utimur in hereditate ciuium Roma-
norum libertinorum. idque maxime
Pegaso placuit. quae sententia
aperte falsa est. nam ciuis Romani
liberti heredites numquam ad ex-
traneos patroni heredes | pertinet,
bona autem Latinorum [etiam] ex
hoc ipso senatusconsulto non obstan-
tibus liberis manumissoris etiam ad
extraneos heredes pertinent. item
in hereditate ciuis Romani liberti
liberis manumissorie nulla exhere-
datio nocet, in bonis Latinorum
nocere nominatim factam exhereda-
tionem ipso senatusconsulto signifi-
catur.
$64a. Uerius est ergo hoc solum
eo senatusconsulto actum esse, ut
manumissoris liberi qui nominatim
exheredati non sint, praeferantur
extraneis heredibus.
$65. Itaque emancipatus filius
petroni praeteritus quamuis contra
tabulas testamenti parentis sui bo-
norum possessionem non petierit,
tamen extraneis heredibus in bonis
Latinorum potior habetur.
LIBERTI LATINI.
313
$ 63. At a later period, when
Lupus and Largus were consuls, the
senate decreed that the goods of a
Latinus Junianus should belong in
the first place to the manumitter,
in the next to such issue of the pa-
tron as are not individually disin-
herited in the order of their proxi-
mity, and, in default of these, should
belong by the ancient rule of devo-
lution to the external heir of the
manumitter.
$ 64. The effect of this senatus-
consult is, according to some autho-
rities, that the goods of a Latinus
Junianus, are acquired by the same
title as the succession of a freedman
who has enjoyed the full franchise,
and this was the doctrine of Pega-
sus: but this opinion is clearly
erroneous, for a freedman who has
the full franchise never transmits
his succession to an external heir
of his patron; whereas the goods of
a Latinus Junianus, by the express
terms of the senatusconsult, in
default of children of the manu-
mitter devolve on his external heir.
Again, in the succession of a freed-
man who had the full franchise, the
children of the manumitter are not
barred by any form of disinherit-
ance; whereas, in respect of the
goods of a Latinus Junianus, they
are barred by individual disinherit-
ance by the express terms of the
senatusconsult.
§ 64a. The only true effect, then,
of the senatusconsult is, that the
manumitter's children in the absence
of individual disinheritance take
precedence of external heirs.
$ 65. Accordingly, an emanci-
pated son of the patron who is
passed over in silence by his father,
though he omits to impeach his
father's wil and demand contra-
tabular possession, takes precedence
of an external heir in respect of the
goods of a Latinus Junianus.
314
§ 66. Item filia ceterique sui
heredes licet iure ciuili inter ceteros
exheredati sint et ab omni heredi-
tate patris sui summoweantur, tamen
in bonis Latinorum, nisi nominatim
a parente fuerint exheredati, poti-
ores erunt extraneis heredibus.
$ 67. Item ad liberos qui ab here-
ditate parentis se abstinuerunt,
nthilo minus bona Latinorum per-
tinent; nam ht quoque exheredati
nullo modo dici possunt, non magis
quam qui testamento silentio prae-
teriti sunt.
§ 68. Ex his omnibus satis illud
apparet, si is qui Latinum | fecerit,
|—sse; hunc enim so-
lum——in bonis Latinorum—
(4 wersus in C legi nequeunt) —
quaeritur, an exheredes
(5 wersus in C legi nequeunt)
| et libe | |—con-
| —— bona Latinorum —
|—est ut
ab alteri | | |
$ 69. Item illud quoque constare
uidetur, si solos liberos ex | dispari-
bus partibus patronus
tant, ad eos pertinere, quia nullo
interueniente extraneo herede sena-
tusconsulto locus non est.
Stat
$ 70. Sed si cum liberis suis etiam
extraneum heredem patronus rel
querit, Caelius Sabinus ait tota bona
pro uirilibus partibus ad liberos
defuncti pertinere, quia cum extra-
neus heres interuenit, non habet lex
Iunia locum, sed senatusconsultum.
Iauolenus autem ait tantum eam
partem ex senatusconsulto liberos
patroni pro uirilibus partibus habi-
turos esse, quam extranei heredes
ante senatusconsultum lege Iunia
habituri essent, reliquas uero partes
DE RERUM UNIVERSITATIBUS.
[urr. $6 55-76.
$66. Again, a daughter and other
issue who can be disinherited at
civil law in a mass and thereby
effectively barred from all the suc-
cession of their parent, in respect
of the goods of a Latinus Junianus,
in default of individual disinherit-
ance, have priority over an external
heir.
§ 67. Children who abstain from
the succession of their parent are
entitled to the goods of his Latinus
Junianus in spite of their absten-
tion, because they cannot be said to
be disinherited any more than chil-
dren who are passed over by a tes-
tator in silence.
§ 68. From all these points it is
sufficiently apparent that he who
makes a Latinus Junianus. . . .
$69. This also seems to be
established, that if a patron has
instituted his children as his sole
heirs but in unequal portions, the
property of a Latin belongs to them
in the same unequal proportions,
because in the absence of an external
heir the senatusconsult has no ap-
plication.
$70. If thechildren of the patron
are joint heirs with a stranger,
Caelius Sabinus holds, that the
totality of the goods of a Latinus
Junianus devolves in equal portions
to the children, because the exist-
ence of an external heir brings them
within the senatusconsult instead of
the lex Junia. According to Javo-
lenus, only that part will devolve
under the senatusconsult in equal
portions to the children of the pa-
tron to which, before the senatus-
rr. $$ 55-76. ]
pro hereditariis partibus ad eos
pertinere,
$ 71. Item quaeritur an hoc
senatusconsultum ad eos patroni
liberos pertineat, qui ex filia nepteue
procreantur, id est ut nepos meus
ex filia potior sit in bonis Latini
mei quam extraneus heres. item
(an) ad maternos Latinos hoc
senatusconsultum pertineat quae-
ritur, id est ut in bonis Latini
materni potior sit patronae filius
quam heres extraneus matris.
Cassio placuit utroque casu locum
esse senatusconsulto. sed huius
sententiam plerique inprobant, quia
senatus de his liberis | Prtronartan]
nihil sentiat, qui aliam familiam
sequerentur. idque ex eo apparet
quod nominatim exheredatos sum-
mouet; nam uidetur de his sentire
qui exheredari a parente solent, si
heredes non instituantur; neque
autem matri filium filiamue, neque
suo materno nepotem neptemue,
si eum eamue heredem non instituat,
exheredare necesse est, siue de iure
ciuili quaeramus, siue de edicto prae-
toris, quo praeteritis liberis contra
tabulas testamenti bonorum pos-
sessio promittitur.
$ 72. Aliquando tamen ciuis Ro-
manus libertus tamquam Latinus
moritur, uelut si Latinus saluo iure
patroni ab imperatore ius Quiritium
consecutus fuerit. nam, ut diuus
Traianus constituit, si Latinus,
inuito uel ignorante patrono ius
Quiritium ab imperatore consecutus
sit, [quibus casibus] dum uiuit iste
libertus, ceteris ciuibus Romanis li-
LIBERTI LATINI.
315
consult was passed, the external
heir would have been entitled under
the lex Junia, and the residue will
devolve to them in the proportion
of their shares in their father’s suc-
cession.
§ 71. It is a further question,
whether this senatusconsult extends
to children born of a daughter or
granddaughter of a patron, so that
in respect of the goods of a Latinus
Junianus a grandson by a daughter
will take precedence of an external
heir. Again, whether a maternal
Latinus Junianus is within the
senatusconsult, so that in respect
of a Latinus Junianus, manumitted
by a mother, precedence is given to
the patroness’ son over an external
heir of the mother. Cassius held
that both cases are within the scope
of the senatusconsult; but his
opinion is generally rejected on the
ground that the senate could not
contemplate the benefit of patron-
esses’ sons; persons, that is, never
in the manumitters family; as
appears from its making individual
disinheritance a bar; for herein the
senate appears to contemplate those
who must be disinherited by their
parent in default of institution.
Now a mother need not disinherit
her child, nor a mother’s father a
grandchild, in default of institution,
either by the civil law or by that
part of the praetorian edict which
promises contra-tabular possession
to children passed over by a testator
in silence.
§ 72. Sometimes a freedman who
has enjoyed the full franchise dies
as a Latinus Junianus; for in-
stance, a Latinus Junianus who has
obtained an imperial grant of Qui-
ritary status without prejudice to
the rights of his patron: for by a
constitution of the emperor Trajan
a Latinus Junianus who obtains an
imperial grant of Quiritary status
316
bertis similis est et iustos liberos
procreat, moritur autem Latini
jure, nec ei liberi eius heredes esse
possunt; et in hoc tantum habet
testamenti factionem, ut patronum
heredem instituat eique, si heres
esse noluerit, alium substituere
possit.
$ 73. Et quia hac constitutione
uidebatur effectum, ut ne umquam
isti homines tamquam ciues Romani
morerentur, quamuis eo iure postea
usi essent, quo uel ex lege Aelia
Sentia uel ex senatusconsulto ciues
Romani essent, diuus Hadrianus
iniquitate rei motus auctor fuit
Benatusconsulti faciendi, ut qui
ignorante uel recusante patrono ab
imperatore ius Quiritium consecuti
essent, si eo iure postea usi essent,
quo ex lege Aelia Sentia uel ex
senatusconsulto, si Latin] mansis-
Bent, ciuitatem Romanam conseque-
rentur, proinde ipsi haberentur ac
si lege Aelia Sentia uel senatus-
consulto ad ciuitatem Romanam
perueuissent.
DE RERUM UNIVERSITATIBUS.
[ur. $$ 55-76.
without the consent or knowledge
of his patron resembles during his
lifetime other fully enfranchised
freedmen, and procreates lawful
children, but dies with the status
of & Latinus Junianus, leaving no
children that can inherit; and bas
only this amount of testamentary
capacity that he may institute his
patron heir, and name a substitute
to him in case of his renouncing
the inheritance.
$73. But as the effect of this
constitution seemed to be, that such
@ person could never die in posses-
sion of the plenary franchise, even
though he subsequently acquired
the title to which the lex Aelia
Sentia or the senatusconsult (1$ 31)
annexes the right of Roman citizen-
ship, the emperor Hadrian, to miti-
gate the harshness of the law, passed
@ senatusconsult, that a freedman,
who obtained from the emperor a
grant of Quiritary status without
the knowledge or consent of his
patron, on subsequently acquiring
the title to which the lex Aelia
Sentia or the senatusconsult, if he
had remained a Latinus Junianus,
would have annexed the rights of
Roman citizenship, should be deem-
ed to have originally acquired Qui-
ritary status by the title of the lex
Aelia Sentia or the senatuscousult.
DE BONIS LIBERTORUM DEDITICIORUM.
$74. Eorum autem quos lex
Aelia Sentia dediticiorum numero
facit, bona modo quasi ctutwm
Romanorum libertorum, modo quasi
Latinorum ad patronos pertinent.
$75. Nam eorum bona qui, st in
aliquo uitio non essent, manumissi
ciues Romani futurt essent, quasi
ciuium Romanorum patronis eadem
lege tribuuntur. non tamen hi
habent etiam testamenti factionem ;
$ 74. Those who under the lex
Aelia Sentia are quasi surrendered
leave their goods to their patrons
sometimes like freedmen fully en-
franchised, sometimes like Latini
Juniani.
$75. Those of them who, but
for some offence, would have ob-
tained on manumission the plenary
franchise leave their goods to their
patrons like fully enfranchised
freedmen by the provision of the
111. $$ 55-76. ]
nam id plerisque placuit, nec in-
merito : nam incredibile videbatur
pessimae condicionis hominibus uo-
luisse legis latorem testamenti faci-
endi ius concedere.
$ 76. Eorum uero bona qui, si
non in aliquo uitio essent, manu-
missi futuri Latini essent, proinde
tribuuntur patronis, ac si Latini
decessissent. nec me praeterit non
satis in ea re legis latorem uolunta-
tem suam uerbis expressisse.
LIBERTI DEDITICII.
317
above mentioned statute; but, ac-
cording to the prevalent and better
opinion, they cannot make a will;
for it seems incredible that the
most abject order of freedmen should
have been intended by the legislator
to enjoy the power of testamentary
disposition.
$76. The goods of those who,
but for some offence, would have
become on manumission Latini
Juniani devolve to their patrons
asthe goods of Latini Juniani,
though, as I am aware, the legis-
lator has not expressed his intention
in this matter in terms as unequi-
vocal as might be desired.
$ 56. For liberti Latini Polenaar proposes to read : liberi [in the
sense of ingenui] Latini.
$ 59. Jt was an arbitrary rule of Roman jurisprudence that rights
of patronage were not divisible in unequal portions (placuit nullam
esse libertorum divisionem, Dig. 37, 14, 24), that is, that several
joint proprietors of a slave in unequal portions acquired by his
manumission equal rights as joint patrons against his succession.
$ 60. The nghts of patrons were modelled on those of agnates,
and we know that only the nearest agnate was entitled to succeed.
Therefore on the decease of one of several joint patrons his rights
accrued to the remainder by survivorship. But the peculium of a
slave belongs to his coproprietors in the ratio of their property,
and on the decease of one, his rights do not accrue to the copro-
prietors, but are transmitted to the representatives of the deceased.
§ 63. Cf. Inst. Just. 8, 8, 4. The Sc. Largianum was passed
under the emperor Claudius, 4. n. 42.
$69. The Sc. Largianum giving a successoral right to the
children of the patron, put them all on a footing of equality like
manumitting joint proprietors, $ 59, but it only took effect when
a stranger was appointed heir or coheir; if then a patron left his
whole inheritance to his children, but in unequal portions, their
rights to the succession of a Latinus Junianus would be governed
by the older law, and would be proportionate to their shares in
their father's succession.
$75. Cf. 1, 25, Ulpian gives as a reason why Dediticius could
not make a will his want of citizenship both at Rome and in every
318 DE RERUM UNIVERSITATIBUS. [1m.$$ 55-76,
other state : Is qui dediticiorum numero est testamentum facere non
potest, quoniam nec quasi civis Romanus testari potest, cum sit
peregrinus, nec quasi peregrinus, quoniam nullius certae civitatis civis
est, ut secundum leges civitatis suae testetur, 20, 14. This requires
some explanation; and the explanation may serve to illustrate all
those passages of Gaius, e.g. 1 § 92, where he alludes to the laws
of civitates peregrinae.
At the close of the republic, and during the first centuries of the
empire, all Italy, with the exception of Rome, was composed of a
number of townships; each with its own territorial limits, and each
possessed of its own constitution, magistrates, jurisdiction, and, toa
_ certain extent, legislation. In the lex Julia municipalis, preserved
on the tabula Heracleensis, these townships are called Coloniae when
they had been founded as colonies from Rome, Municipia when they
traced their existence to some other origin. The provinces, though
originally very variously constituted, were gradually assimilated in
condition to Italy and its towns: so that finally the whole empire
was composed of municipalities, and almost all of its free inhabitants
were either citizens of Rome or of some local and inferior community.
The generic denomination of these communities, whether Italian
or Provincial, was Civitas or Respublica. The term Municipium
was sometimes used in this generic sense; but was more commonly
used in a specific sense as opposed to Colonia. Municipes, however,
is often used in the generie sense where we might have expected
Municipium; as equivalent to Respublica or Civitas. It is also
often used to signify generically, not a state or juristic person
(municipium), but its individual members; i.e. as equivalent to
cives, in speaking of any town but Rome: as the word Civis, from
its habitual opposition to Latinus and Peregrinus, had acquired a
tendency to suggest civis Romanus. The area belonging to each
town was called Regio or Territorium, and included under one
jurisdiction all the Vici within its geographical limits.
Citizenship (civitas, patria, origo) in any munieipality was
producible by four causes: Municipem aut nativitas facit, aut
manumissio, aut adoptio, D. 50, 1, 30, pr. Cives quidem origo,
manumissio, allectio, vel adoptio; incolas vero domicilium facit,
C. 10, 89, 7.
(1) Birth (origo, nativitas) was the commonest title; and hence
the word origo is used as equivalent to civitas. Legitimate children
had the civitas of their father; illegitimate of their mother. Some
mnt. $$ 55-76.] MUNICIPIA. 319
states had the privilege that legitimate children should have the
civitas of the mother in addition to that of the father.
(2) Adoptio gave to the adopted child, in addition to his original
civitas, that of his adoptive father.
(3) Manumissio, when perfect, gave to the freedman the civitas
of his patronus.
(4) Allectio, election by the governing body of a community,
admitted strangers to civitas.
It follows that a man might be a citizen of several states; of one
by origo, another by adoptio, another by allectio. This may seem
to be contradieted by Cicero: Duarum civitatum civis esse nostro
jure civili nemo potest, Pro Balbo, 2: but Cicero is here speaking
of independent sovereign states; not of the dependent states com-
posing the organism of the Roman empire.
When the lex Julia municipalis had given Roman citizenship to
all Italy, and an ordinance of Caracalla, subsequent to the time
of Gaius, had extended it to all the Provinces, every member of any
munieipality had at least a double citizenship : he was citizen of
Rome as well as of the smaller municipality : Omnibus municipibus
duas esse censeo patrias, unam naturae, alteram civitatis . . . habuit
alteram loci patriam, alteram juris, Cicero, Delegibus,2, 2. Roma
communis nostra patria est, Modestinus, D. 50, 1, 33.
The principal effects of citizenship in a municipality were three-
fold :
(1) Obligation to bear certain burdensome municipal offices
(munera) ;
(2) Subjection or obligation of submission to the municipal
magistrates and tribunals, including liability as defendant to be
sued before its courts (forum originis) ;
(3) Subjection to municipal laws, including the determination of
a man's personal capacity—infancy, minority, majority, capacity of
disposition, &c.—by the laws of the community in which he had
civitas (lex originis).
In all these effects a man’s Roman citizenship was of slight
importance compared with his municipal citizenship. The burdens
(munera) of the metropolitan city were provided for by arrange-
ments peculiar to Rome, The liability of a defendant to be sued
before a Roman forum was limited to the time when he happened
to be resident in Rome, and then was subject to many exceptions,
included under the general name of jus revocandi domum ; and in
320 DE RERUM UNIVERSITATIBUS. [1m.$$ 55-76.
any ease of collision between the laws relating to personal capacity,
the laws of Rome always yielded to those of the local patria or
father town (lex originis).
In all the above consequences Domicil (domicilium, incolatus,
domus) had an operation similar to civitas. Domicil is the place
which à man has voluntarily chosen for his permanent residence, as
the central station of his fortunes, and the head-quarters of his
dealings and dispositions ; Incolas vero . . . domicilium facit. Et
in eo loco singulos habere domicilium non ambigitur, ubi quis
larem rerumque ac fortunarum suarum summam constituit, unde
rursus non sit discessurus, si nihil avocet, unde quum profectus est,
peregrinari videtur, quo si redit, peregrinari jam destitit, C. 10, 89,
7. * Home is identical with Domicil ; and Domicil is agreed to be
the place where a man has established his household gods and the
head-quarters of his transactions and obligations: the place which
he will not leave except for a special purpose; absence from which
makes him seem to be a stranger, and return to which makes him
cease to be a stranger.’ Sed de ea re constitutum esse (respondit),
eam domum unicuique nostrum debere existimari, ubi quisque sedes
et tabulas haberet suarumque rerum. constitutionem fecisset, D. 50,
16, 203. ‘It is undisputed that a man's home is the place where
he is settled and has his counting-house (account-books) and
the basis of his operations (or, centre of gravitation of his for-
tunes).’
A man was liable to munera of the city which he had chosen for
a domicil as well of that where he had the rights and duties of
citizenship. Domicil, as well as Origo, constituted a man’s General
forum ; that is, in any action in which a man was defendant, the
plaintiff had the election whether he would sue him at his forum
originis or forum domicilii. A man can only be governed by one
Lex: and if he was citizen in any municipality, he was governed
by lex originis; if he was nowhere citizen, he was governed by lex
domicilii. [Domicilium originis, a monstrous combination of modern
writers, ought to express the coincidence of Domicil and Fatherland,
but is intended to express the paternal domicil (domicil of a man’s
father).]
The subversion of the Roman empire in the west abolished the
importance of the Municipalities; and, with the exception of Swit-
zerland where it still prevails, the doctrine of Origo disappeared
from those countries which are still influenced by Roman juris-
riz. $$ 55-76. | ORIGO, DOMICILIUM. 321
prudence. The doctrine of Domicilium still survives, at least as to
Forum and Lex, in Private international law: what related to
Munera shared the fate of the other political institutions of the
empire. Savigny, $$ 850-359.
We may observe that the reason assigned by Ulpian for the
incapacity of Dediticius to make a will, his want of patria, appears
inadequate : for, if he had no patria, at least he had domicilium, and
we have seen that, in the absence of patria, a man’s personal
capacity was determined by his domicilium. We may infer that
the equivalence of domicilium to patria—to say nothing of the
modern maxim: Locus regit actum, 4 § 53, comm., the ability of
even temporary residence, as opposed to domicil, to give validity
to the mere Form of a disposition—was not completely established,
not at all events in favour of Dediticius, in the times of Gaius or
even in those of Ulpian.
§ 76. The third class of freedmanship (dedititia libertas) had
long been obsolete when it was formally abolished by Justinian,
A.D. 580, Cod. 7, 5.
The second class (latinitas) under which the freedman relapsed
into servitude at the moment of death, was also offensive to Roman
feelings in the time of Justinian, and was by him formally abolished,
the principal modes of ereating latinitas being transformed into
modes of acquiring quiritary status or civitas Romana, and the
remainder being declared inoperative, Cod. 7, 6.
The rules of succession to intestate freedmen of the first class,
the only elass henceforth recognized, were immensely simplified by
Justinian. While he abolished the last remnants of the lex Papia,
and amongst them the riphte which that law gave to the patron
against the heritage of Centenarius, or the freedman who died worth
100,000 sesterces, or what Justinian treated as equivalent, 100
aurei; he confined the rights of the patron to inheritances of that
amount ; that is to say, he exempted from the claims of the patron,
contratabular or ab intestato, all estates left by a freedman below
the value of 100 aurei. Against such estates, moreover, he reduced
the claims, contratabular or ab intestato, of the patron from 3 to 4.
Patrons were protected against dolose alienations by the freed-
man in his lifetime in two ways. Alienations which reduced the
fortune of the freedman below the specified limit (made the freed-
man minorem centenario) were deemed to be in fraudem legis, and
were ipso jure null and void: alienations which, without making
Y
322 DE RERUM UNIVERSITATIBUS. _[n1. §§ 55-76.
the freedman minorem centenario, diminished the amount of the $
to which the patron was entitled, were valid at law, but were
rescinded by the patron's personal action against the alienee. If
the freedman died testate, the patron employed against the alienee
the formula Fabiana ; if he died intestate, the formula Calvisiana.
These actions were analogous to the actio Pauliana, the creditors’
remedy against the alienee in the case of alienations in fraudem
creditorum. Dolose alienations by manumission whether in frsudem
ereditorum or in fraudem patroni were made null and void by the
lex Aelia Sentia, Gaius 1 $ 87.
The patron’s remedy by actio Fabiana and actio Calvisiana may
be compared with the cognate’s remedy by Querela inofficiosae
donationis; for the nghts of a patron against the inheritance of
the freedman were analogous to the nghts of a cognate to a certain
portion (debita, legitima portio) of the inheritance of any testator.
While the former were enforced by contratabulation (i.e. by inter-
dictum quorum bonorum and petitio hereditatis possessoria), the
latter were enforced by Querela inofficiosi testamenti, with a
fictitious allegation of the testator’s insanity. The amount re-
coverable by the two classes of claimants differed: while the patron
was entitled to à, or, in later times, $ of the nheritance, the
cognate was entitled to 1 of what would have been his share
in the event of intestacy. In both cases the wil of the
testator, whether libertus or ingenuus, was allowed to stand, so far
as was consistent with the claims of the Querulant or Contra-
tabulant: but while Contratabulation necessarily produced a viola-
tion of the rule: nemo pro parte testatus, pro parte intestatus,
decedere potest, the Querela only produced it occasionally, as it
often caused a complete rescission of the will, or total intestacy.
Praeteriti liberi, i.e. neither instituti heredes nor exheredati, could
also contratabulate like the patron: but the patron’s ground of
contratabulation, like the cognate’s ground of querela, was a
material wrong; whereas preterition of liberi was & mere in-
formality. |
The righte of the patron against the freedman's estate were not
only interesting to the freeborn Roman in his possible character of
a patron, but also as possibly a subject of manumission: for an
emancipating parent (parens manumissor) had the same claims
against the estate left by the emancipated child as the manumitter
of a slave had against the estate left by the freedman, i,e. a claim
im. $$ 77-81.] BONORUM VENDITIO. 323
originally to a moiety and subsequently to a third of the succession,
either contratabular or ab intestato. He however could not bring
actio Fabiana or Calvisiana to defeat dolose alienations made in the
lifetime of the emancipated child.
In later times the multiplication of Peculia, castrense, quasi-
castrense, &c., very much diminished the value of emancipation to
filiusfamilias, and proportionally deprived of its strength the claim
of the emancipating parent to have his act recognised among the
titles of testate and intestate suecession, and it was a foregone con-
clusion that Novella 115, which recast the rules relating to inoffici-
ositas, and Novella 118, which reformed intestate law, should
abolish both the contratabular and the ab intestato rights of parens
manumissor. Adolf Schmidt, Das Pflichttheilsrecht des Patronus
und des Parens manumissor,
SUCCESSIO PER BONORUM VENDITIONEM,
$ 77. Videamus autem et de ea
successione quae nobis ex emptione
bonorum conpetit.
$ 78. Bona autem ueneunt aut
uiuorum aut mortuorum : uiuorum
ueluti eorum qui fraudationis causa
latitant nec absentes defenduntur ;
item eorum qui ex lege Iulia bonis
cedunt; item iudicatorum post
tempus quod eis partim lege XII
tabularum partim edicto praetoris
ad expediendam pecuniam tribuitur.
mortuorum bona eeneunt ueluti
eorum quibus certum est neque
heredes neque bonorum possessores
neque ullum alium iustum succes-
sorem existere.
$ 79. Siquidem uiui bona ue-
neant, iubet ea praetor per dies
continuos XXX possideri et pro-
scribi; si uero mortui, per dies xv.
postea iubet conuenire creditores et
ex eo numero magistrum creari, id
est eum per quem bona ueneant.
$ 77. We next proceed to suc-
cession of a vendee to the estate of
& bankrupt.
. § 78. The estate of a bankrupt
may be sold either in his lifetime or
after his death. It is sold in his
lifetime when, fer instance, he, being
present in the forum, defrauds his
creditors by absconding, or when
he is absent from the forum and
undefended, or when he avails him-
gelf of the lex Julia and surrenders
his estate, or when, after judgment
recovered against him, he has suf-
fered the term to expire that is
prescribed, partly by the Twelve
Tables, partly by the edict of the
praetor, for the satisfaction of a
judgment debt. A bankrupt's estate
is sold after his death when it is
certain that he has left neither an
heir, nor a praetorian representa-
tive, nor any other lawful successor.
§ 79. If the bankrupt whore
estate is to be sold is alive, an or-
der issues from the praetor, and bis
estate is possessed and advertised
for sale for thirty continuous days ;
if the bankrupt is dead, it is pos-
sessed and advertised for fifteen
Y2
324
itaque si uiui bona ueneant, in die-
bus (X bonorum) uenditionem fieri
iubet, si mortui, in dimidio. diebus
itaque uiui bona XxXr, mortui wero
Xx emptori addici iubet. quare
autem tardius uiuentium bonorum
uenditionem conpleri iubet, illa
ratio est, quia de uiuis curandum
erat, ne facile bonorum uenditiores
paterentur.
$ 80. Neque autem bonorum poe-
sessorum neque bonorum emptorwn
res pleno iure fiunt, sed in bonis
efficiuntur; ex ture Quiritium
sutem ita demum adquiruntur, si
uswceperent. interdum quidem
bonorum emptoribus ne wlsus qui-
dem capio contingit, ueluti si |
bonorum emptor | |
§ 81. Item quae debita sunt
| aut ipse debuit, neque
bonorum possessor neque | bonorum
emptor ipso iure debet aw£ ipsis
debentur, |— de omnibus rebus
in sequenti com-
mentario prolponemus.
DE RERUM UNIVERSITATIBUS. [u:.6$77-81.
days. After this delay a second
order issues from the praetor, di-
recting the creditors to hold a meet-
ing and elect out of their number a
liquidator, by whom the estate may
be sold. And after the expiration
of the ten days next following,
if the bankrupt is alive, or of five
if he is dead, & third order issues
from the praetor, under which the
sale is held. Thus after the ex-
piration of forty days if the bank-
rupt is alive, after the expiration
of twenty if he is dead, a decree
of the praetor transfers the universal
estate of the bankrupt to the pur-
chaser. The longer delay pre-
scribed for the sale of the estate of
a living bankrupt is founded on the
greater consideration due to the
living than to the dead, and is de-
signed to protect a living debtor
from unnecessary bankruptcy.
§ 80. Neither a [juxta-tabular,
contra-tabular, or ab-intestato |prae-
torian successor, nor a purchaser in
bankruptcy acquires plenary do-
minion, but only bonitarian owner-
ship. Quiritarian ownership is only
acquired by usucapion, though
sometimes & bonorum emptor can-
not even acquire by usucapion (for
instance, when a peregrinus is
bonorum emptor).
§ 81. Debts owed to or by a
heritage-leaver or a bankrupt are
not at civil law owed to or by the
praetorian successor or vendee in
bankruptcy, but are recoverable by
fictitious forms of action, which will
be explained hereafter [4 § 34].
§ 77. Cf. 4, 85. Missio in possessionem and the subsequent bono-
rum venditio correspond in their essential character to the adjudi-
cation of bankruptcy and the concomitant transfer of the debtor's
estate to the creditor's trustee of English jurisprudence.
Roman law never established any distinction between traders
and non-traders, in other words, between bankruptcy and insolvency,
& distinction once important in English law, and which even at the
ri. $$77-81.] BONORUM VENDITIO. 825
present day is not entirely effaced. Formerly, in consideration of
the hazardous nature of trade, and the necessity of large credits to
sustain an extensive commerce, the trader was treated with greater
indulgence than the non-trader; and bankruptcy operated as a
discharge of obligations, whereas insolvency only discharged the
person of the debtor, and left his obligation to pay out of his after
acquired estate in full force. This distinction is now abolished,
and traders and non-traders are placed on the same footing.
Roman law in respect of the continuing obligation of the bankrupt
resembled the English law of insolvency.
In order to form a clear conception of this branch of the law, it
is necessary to distinguish between an ordinary judgment execution
in a personal action, that is to say, the enforcement by the power
of the state of a judgment debt against a debtor who contumaciously
omits to satisfy the judgment by voluntary payment, from an
adjudication of bankruptey, which is the process when a debtor is
not only unwilling but also unable to fulfil his obligations. The
English process in an ordinary execution is either & writ of fieri
facias, commanding the sheriff to satisfy the debt by seizure and
sale of the personal goods of the debtor; or a writ of levari facias,
now disused, directing him to levy the debt out of the personal
goods of the debtor, and the rents and profits of his land; or a writ
of elegit, commanding him to deliver the debtor's goods to the
ereditor at an appraisement, and to put the creditor in possession of
the debtor's land, to hold until out of the rents and profite thereof
the debt is levied; or formerly, before imprisonment for debt was
abolished, a writ of capias ad satisfaciendum, commanding him to
imprison the body of the debtor until satisfaction was made for the
debt. After & man's body was taken in execution, no other process
could be sued out against his lands or his goods, and after his lands
were seized by elegit, his body could not be taken, but if part
only of the debt was levied on a fieri facias, the creditor might
have a capias ad satisfaciendum for the residue. So that body and
goods might be taken in execution, or land and goods, but not both
body and land. None of these remedies, we may observe, includes
the sale of the debtor’s land. In bankruptcy, on the contrary, the
whole real as well as personal estate of the debtor is transferred to
the creditors’ trustee, to be sold or otherwise disposed of, at the
discretion of the creditors.
We find a corresponding difference between execution and bank-
326 DE RERUM UNIVERSITATIBUS. [rm.$$77-81.
ruptey in Roman law, at all events in its later period. The pro-
ceeding in an ordinary execution, as opposed to proceedings in
insolvency, was called pignoris eapio, Dig. 4, 2, 1. A portion of
the debtor's estate was seized, not by the plaintiff, as in the old
legis actio called pignoris capio, but by public officers (the officiales,
viatores, apparitores, executores of the magistrate), and, after being
detained for two months to enforce payment by way of pledge, was
sold in satisfaction of the debt. Movables were to be seized and
sold in the first instance, but, if these were insufficient, lands might
be seized and sold, Dig. 42, 1, 15. If a purchaser could not be
found the property might be delivered to the creditor at an ap-
praisement, ibid. In pignoris capio there was only a conveyance
of & portion of the debtor's estate, there was no transfer of his j juris
universitas as in insolvency.
We have said that it was necessary to distinguish proceedings
in bankruptcy from execution in a personal action. There is not
the same danger of confusion between bankruptcy and execution in
a real action. The judgment m a real action declares the plaintiff
proprietor, if it passes in his favour, and possession of the thing in
dispute is delivered to him by the sovereign power. The judgment
in a personal action only declares the plaintiff creditor, and some
payment or conveyance has still to be performed by the debtor.
As the levy of an execution by seizure and sale of a trader's
goods for a debt of fifty pounds is an act of bankruptcy, it is
evident that in English law execution will often involve bank-
ruptey ; that is to say, when one creditor has obtained payment of
a debt by an ordinary execution, other creditors will proceed by
petition for an adjudication of bankruptcy. —
In order to understand the proceedings in bonorum emptio, or
execution against the property of an insolvent debtor, the principal
sanction of the Roman civil code in its later periods, we must study
the earlier mode of execution by manus injectio, or process against
the body of the debtor, which was one of the old legis actiones
regulated by the Twelve Tables, 4 §§ 21-25, and which was the
model on which proceedmgs in missio in possessionem, or process
against an insolvent's estate, were regulated by subsequent prae-
torian legislation. These proceedings are known to us by the
statements of Aulus Gellius, who has given us the very terms of
the Twelve Tables, 20,1. ‘After an admission of debt or a judg-
ment the debtor was allowed thirty days for payment. This delay
nr. 8 77-81.] BONORUM VENDITIO. 327
is called a lawful interval by the decemvirs, and interposed a stay
of legal proceedings, After its expiration, in default of payment,
the debtor was summoned before the praetor and delivered to the
custody of the creditor, to be confined in stocks or chains. The
following are the expressions of the law: Admitted debts and
debts proved by statute-process must be satisfied within a lawful
term of thirty days. When these are elapsed the debtor may be
apprehended and taken before the magistrate. In default of satis-
fying the judgment, or of finding bail in the court who will bind
himself to defend an action for the debt, he shall be delivered into
the hands of the creditor, to be forcibly removed and confined in
stocks or fetters. . . . During a subsequent interval the debtor
might effect a compromise, but in default of a compromise was
detained in chains for sixty days. During this period, on three
continuous ninth or market-days he was taken before the praetor
in the comitium, where the amount of the judgment debt was pro-
elaimed. On the third market-day he was put to death, or sold
into slavery beyond the Tiber. ... On the third market-day, say
the Twelve Tables, the creditors may cut their portions of his body,
and no creditor who cuts too little or too much shall be therefore
called to account.’
In close imitation of this execution against the body, a process
of execution against the property of an insolvent was introduced
by a praetor named Publius Rutilius, upwards of a century before
the Christian era, 4 § 35. It may be assumed from the parallelism
of these proceedings that the interval of thirty days which was
required to elapse between the first seizure and the decree author-
ising the election of a magister was derived from the thirty days
interval allowed the judgment debtor before manus injectio.
Some of the details of the proceedings in a missio in possessionem
which are omitted by Gaius may be supphed from Theophilus.
Before the final transfer of the debtor’s estate (addictio) three
decrees of the praetor were necessary :— Ó
(1) A decree authorizing the seizure of the debtor's estate and its
advertisement for sale (proseriptio). "Theophilus gives the form of
this advertisement: 6 diva, xypeworis ?)uérepos jmápycv, els alr(av
épézeaec bumpáaews. ters, xpedlrwpes Óvres, rijv rovrov b.amumpáakop.ev
aeptovoiay. ayntys 6 BovAduevos mpoaíro, 3,12. * So-and-so, our
debtor, is bankrupt; we, his creditors, are about to sell his estate ;
whoever wishes to purchase is invited to attend.’ This advertise-
328 DE RERUM UNIVERSITATIBUS. [m.$$ 77-81.
ment was affixed to the Columna Maenia, which was in the forum
on the Puteal near the Career. Pliny, N. H. 7, 60. In the old
system of manus injectio, the judgment debtor ( judicatus), after the
expiration of the thirty dies justi, was no longer allowed to defend
an action in person, but might, as we see by the above-quoted
fragment of the Twelve Tables, be defended by a vindex. In the
formulary system, the equivalent of the vindex was satisdatio judi-
eatum solvi, security with two sureties for the payment of the
judgment to be recovered, and the Judgment recoverable in an actio
judieati was for twice the amount of the disputed judgment debt,
Gaius, 4$ 9, 4$ 102. Supposing, however, the missio in posses-
sionem was not founded on a previous judgment, but on the debtor’s
absconding or keeping house, then the period at which he was dis-
abled from defending an action, unless he gave security (judicatum
solvi) was the expiration of thirty days after his estate had been
seized and advertised for sale, Cicero, Pro Flacco. Before the
thirty days have expired, the debtor is admitted to defensio without
satisdatio judicatum solvi.
(2) After the possession and proscription of the estate the bank-
rupt is infamis, and cannot defend without satisdatio judicatum
solvi; and a second decree of the praetor empowered the creditors
to hold a meeting and elect a magister to manage the sale, corre-
sponding to the creditor’s assignee or, at the present day, the
creditor's trustee of English law.
(3) After a certain period (ten or five days), a third decree
authorized the publication of the conditions of sale, which were
appended to the original advertisement.
A period of forty or twenty days having thus been completed
from the first missio in possessionem, the sale took place by
publie auction, the universitas juris of the debtor being trans-
ferred to the bidder who offered the creditors the highest dividend,
that is, the greatest amount in the pound on their respective
claims.
The principal acts or defaults which entitled a Roman cre-
ditor to bonorum venditio, may be compared with those which
entitle an English creditor to petition for an adjudication in
bankruptey, i.e. to the so-called acts of bankruptcy of English
jurisprudence.
(1) As manus injectio might be founded on a previous judgment
or an admission of debt (res judicata or aes confessum), and missio
nt. $$ 77-81.] BONORUM VENDITIO. 329
in possessionem might be granted instead of pignoris capio against
judieatus who makes default, so in English law non-payment of an
admitted or a judgment debt after service of a debtor's summons is
an act of bankruptcy, and instead of suing out a writ of execution
the creditor may petition for adjudication of bankruptcy.
(2) When there is no previous judgment or admission of debt, a
debtor who absconds or secretes himself, with intent to defraud his
creditors, commits an act of bankruptcy in both systems of law.
In English law, for instance, if a debtor makes an appointment
with a creditor to meet at the debtor’s place of business, and avoids
the meeting with the intention of delaying the creditor; or if he
withdraws from his usual counting-house to a room upstairs, to
avoid the rightful and personal solicitation of his creditors for pay-
ment, he commits an act of bankruptcy. Soin Roman law: Praetor
ait: In bona ejus qui judicio sistendi causa fidejussorem dedit, si
neque potestatem sui faciet neque defendetur, iri jubebo, Dig. 42,
4,2. ‘The praetor says in the edict: If a man enter into a bond
with suretyship to appear at a trial, and neither appears in person
nor by procurator, I will permit the plaintiff to seize his goods.’
Again: Praetor ait: Qui fraudationis caus& latitabit, si boni viri
arbitratu non defendetur, ejus bona possideri vendique jubebo, Dig.
42, 7,1. ‘The praetor says in the edict: If a man secrete himself
with intent to defraud his creditors, and is not defended by a pro-
curator who gives security approved by an arbitrator, I will order
his property to be seized and sold.’
There is no adjudication of bankruptey against a deceased debtor
in English law, but there may be a transfer of his universitas juris
as in Roman law; for creditors, in default of other administrators,
may take out letters of administration against the estate of a
deceased debtor.
Cessio bonorum was introduced by a lex Julia, § 78, enacted
either by Julius or Augustus Caesar, and if by the latter, in
imitation of a measure of the former which he himself has recorded.
In the year 48 5.c. when Caesar was consul, credit having collapsed
in consequence of the civil war, debtors being generally insolvent,
and money having disappeared, Caesar allowed them to discharge
their obligations by the transfer of their estates, movable and
immovable, to their creditors, at the value, appraised by arbitrators,
which they would have borne before the commencement of the war,
De Bello Civili, 8, 1. Cessio bonorum conferred three benefits on
330 DE RERUM UNIVERSITATIBUS. [11. $$ 77-81.
the debtor: exemption from arrest and imprisonment, exemption
from infamy, exemption of his after-acquired property from liability
beyond a certain amount. Of these in order.
(a) After the abolition of the legis actiones, and the introduction
of execution against the estate, execution against the body of the
debtor still remained as one of the remedies of the civil code. The
insolvent debtor was incarcerated and compelled to labour for the
benefit of the creditor, although he could no longer be sold as a
slave. Savigny holds that Personal execution—incarceration, manus
injectio—was always confined to a judgment on a money loan—
mutuum, numerata pecunia: or on Nexum—a fictitious money
loan, a contract transformed or novated by a fiction of a money
loan, particularly a contract for payment of interest, which in itself
was not a contract of mutuum but of stipulatio: or on certain other
obligations assimilated by statute to mutuum, e.g. actio depensi,
4 6 22. Execution against the estate was not, then, & modern
invention but coeval with execution against the body; and was
employed against all judgment debtors except those condemned for
a money loan, real or fictitious, or for depensum or certain other
grounds defined by statute. The lex Poetelia left untouched Per-
sonal execution for genuine money loans; and this execution was
still practised in the time of Justinian, though rendered uncommon
by the frequency of Cessio bonorum. The lex Poetelia only abolished
Personal execution for Nexum (a fictitious money loan) though it
also mitigated the treatment of the debtor condemned ( judicatus,
addictus) for a genuine loan. From this personal execution a debtor
was exempted by cessio bonorum. In eo tantummodo hoc beneficium
eis prodest ne judieati detrahantur in carcerem, Cod. 7,71, 1. *'The
principal benefit of bonorum cessio is, that it exempts the insolvent
from incarceration) Bethmann-Hollweg holds, § 112, that personal
execution applied to all judicati, and that exemption from incar-
ceration was only obtained by bonorum cessio.
(b) The assignment (addictio) of the insolvent borrower re-
duced him to a state of partial servitude. But the Roman lawyers
distinguished between partial slavery (servire) and complete
slavery (servum esse), Quintilian, 7, 3. For instance, the addictus
retained his praenomen, nomen, cognomen, tribe, could by pay-
ment of his debt recover his liberty at any time without the
consent of the creditor, and on recovery of his liberty was not
. libertinus butingenuus, As, then, addictio did not reduce a free-
mi. $$ 77-81.] BONORUM VENDITIO. 331
man to slavery, it did not operate a degradation of status (capitis
minutio).
Insolvency, however, deeply affected another branch of status,
namely, civitas, although even here, as it only partially destroyed
the privileges of civitas, it was not considered to operate a capitis
minutio. Civitas, as we have seen, consisted of two portions,
certain political or publie rights, jus suffragii and jus honorum, and
certain civil or private rights, collectively denominated commercium
and connubium. The political half of civitas was destroyed by
insolvency, which deprived a man of his electoral powers and his
capacity for office, and reduced him to the condition of aerarius ;
and even the civil half was seriously impaired, and principally in
respect of commercium, Of the aggregate of capacities called
commercium the privilege forfeited by insolvency was the capacity
of appointing or being appointed procurator, Inst. 4, 48, ld. By
being disabled from appointing a procurator a man might be
seriously hampered in his commercial proceedings, as he would
be unable to cede a right of action ; by being disqualified for acting
as procurator he would be unable to acquire by cession a right of
action, and would be unable to sue for a penalty as an informer in
a popularis actio, 4 § 82, for the prosecutor in such an action was
considered to be the procurator of the people. The various privileges
enjoyed by a citizen of untarnished credit, and liable to be forfeited
by insolvency, were called his existimatio, and the disabilities of
insolvency were summed up in the word *infamia or ‘ignominia.’
From this loss of existimatio the insolvent was exempted by bono-
rum cessio, Debitores qui bonis cesserint lieet ex e& causá bona
eorum venierint, infames non fiunt, Cod. 2,12,11. ‘The surrender
of a debtor’s estate, though followed by a sale, does not involve
infamy.’
(c) Proceedings in bankruptcy or insolvency, particularly in
modern days, may be looked upon in two lights: either as a mode
of execution, that is, as assisting the creditor to recover as much
as may be of his rightful claims, or as a mode of liberation,
that is, as a relief of an unfortunate debtor, releasing him of his
debts without payment, and enabling him to ‘begin the world
again’ without the overwhelming pressure of his past obligations.
By the present English law, a bankrupt is discharged of his obliga-
tions by payment of a dividend of ten shillings in the pound, or,
failing this, by a resolution of his creditors that his bankruptey has
332 DE RERUM UNIVERSITATIBUS. [n1.6$ 77-81.
arisen from circumstances for which he cannot justly be held
responsible, and an expression of their desire that he should receive
an order of discharge. Roman law only admitted this in one case,
the case of a slave instituted heres necessarius, 2 § 155, in order to
save the credit of an insolvent testator. After once undergoing
bankruptcy, such a person was not liable to further molestation.
But the after-acquired property of other insolvente remained hable
to successive sales until plenary satisfaction of their debte. Accord-
ingly, bankruptcy is not enumerated, 3 § 168, as one of the modes
of extinguishing obligation.
To encourage the bankrupt, however, to make a bonorum cessio,
in order that as much as possible might be saved from the wreck of
his fortunes for the benefit of his creditors, bonorum cessio not only
discharged him, as we have seen, from personal execution, but dis-
charged from hability such portion of his after-acquired property
as was necessary for his subsistence. Qui bonis cesserint nisi
solidum creditor receperit non sunt liberati, Cod. 7, 71, 1. Is qui
bonis cesserit, si quid postea acquisierit, in quantum facere potest
convenitur, Dig. 42, 8, 4. * Bonorum cessio does not discharge the
insolvent/s estate until he makes full satisfaction, but exempts him
from subsequent pursuit for more than he can afford to pay.’ See
4, 48 comm.
Both in Roman and in English law there isa transfer of the insol-
vent’s juris universitas, but with this difference—in English law
the bankrupt’s estate is vested in the creditor’s trustee, in Roman
law it vested not in the magister but in the vendee, the emptor
bonorum.
In the last period of Roman law, such as we find in the
time of Justinian, venditio bonorum was superseded by distractio
bonorum, which involved no transfer of the juris universitas. <A
curator was appointed by the praetor, and instead of selling the
active and passive universality of the insolvent’s estate toa pur-
chaser who became liable to the insolvent’s creditors, merely sold
the active residue of his estate in detail. Justinian attributes
this change to the abolition of the formulary procedure and
generalization of cognitio extraordinaria: Theophilus, to the
abolition of the conventus, assizes, sessions, or brief law terms
of the provinces, and the erection of permanent provincial tri-
bunals. But it is not easy to see in what respect the c were
correlated.
m. & 77-81.] INSOLVENCY. 333
Under the empire ordinary execution (Pignoris capio) was differ-
entiated from bankruptcy proceedings (Missio in bona) In
Pignoris capio the court (not the creditor) was put in possession,
and the sale took place in two months, unless the debtor paid before
that period. In real actions the res was delivered by the court to
the plaintiff; i.e. the court had acquired a new faculty of trans-
muting property from the defendant to the plaintiff. Only fiscal
debtors and insolvents were now subject to loss of freedom, and this
was no longer incarceration, but only custodia militaris, surveillance
by a soldier. Pignoris capio (special Real execution) was followed
by a sale by auction (licitatio, subhastatio) conducted by apparitores
Praetoris. Whereas under the early law creditors obtained Missio
in bona before proof, and had subsequently to prove their claims
against the universal successor (bonorum emptor); under the latest
law only those creditors who had proved obtained Missio in bona,
and then received their percentage not from the universal successor
but at the hands of the judex, immediately from the Massa, the
proceeds of the sales by a curator; privileged creditors receiving
first their whole claims, unprivileged equal percentages (aequalis
portio pro rata debiti quantitate) Two years were allowed to
creditors in the same province, four years to creditors in different
provinces to prove their claims; after which they retained their
claims against the debtor,.but not against the possessing creditors.
Bethmann- Hollweg $$ 158—160.
Bonorum sectio differed from bonorum venditio in that it vested
quiritary property in the vendee. Some criminal condemnations
involved confiscation, and the sale of the criminal’s estate was
conducted not by a magister but by a quaestor of the treasury,
who sold under the spear, the symbol of quiritary dominion.
Sectio bonorum transferred the juris universitas of the criminal, It
is alluded to, 8 $ 154,4§146. Bonorum cessio, as we are expressly
informed, Cod. 7, 71, 4, only gave the creditors a power of sale and
did not invest them with quiritary dominion.
The following observations may serve to supplement the brief
remarks of Gaius on the subject of Insolvency :
Bankruptcy proceedings are a partial execution, and therefore
belong, not to the law of Dominion, but to the law of Obligation or
the law of Procedure. The latter, as we have already noticed, has
some elements which are not purely formal, but material, and as
such are rightly admitted to a treatise on substantive law. Insol-
334 DE RERUM UNIVERSITATIBUS. [1r. $$ 77-81.
vency 18 placed by Gaius in the sphere of Dominion or Real rights,
because in his day insolvency occasioned a transfer of a universitas,
which was deemed to be a jus in rem. In later Roman law no
such transfer occurred.
Proceedings in Insolvency may be divided into two portions, of
which one is (À) preparatory, and the other (B) final.
(A) The preparatory portion includes the Proof of their debts by
the several creditors ; the collection of the assets or formation of the
Massa; and its sale. The collection of the assets includes, on the
one hand, the recovery back of property that has been aliened in
fraudem creditorum ; and, on the other, the elimination or separa-
tion from the mass of such things found in the possession of the
insolvent as were not really his property but the property of other
persons called Separatists.
Separatist claimants are those claimants
(x) Who can sue for a thing by any form of Real action, whether
& rei vindicatio, or aetio Publiciana, or hereditatis petitio, or actio
confessoria brought to recover some Personal servitude like usus-
fructus. An actio confessoria to enforce a Real servitude is obviously
not an interest of a nature to give a right of Separation. Those
who had a pignus or hypotheca were also ranked by the Romans
among the Separatists: in German civil law they take their place
among the creditors proper or concurrent.
(2) Or Separatists are claimants who have a Personal action
whereby they can recover some Specific thing from the possession of
the insolvent ; such as actio commodati, depositi, locati, mandati,
condictio furtiva, interdictum unde vi, actio de pauperie, or actio
quod metus causa.
(B) The final stage is the distribution of the realized proceeds of
the present assets among the concurrent creditors according to their
classification, The partial execution is not a discharge of the in-
solvent, and therefore subsequent assets will be subject to a subse-
quent distribution.
In modern Roman law concurrent creditors are marshalled in five
classes.
I. Creditors with an Absolute privilege, viz. creditors for the
funeral expenses of the insolvent. Modern law adds Servants who
are creditors for their wages, and the Fiscus which has a claim for
arrears,
' 2. Privileged Hypothecary creditors, i. e. the Fiscus, the wife for
rir. $$ 82-84. ] ADROGATIO, COEMPTIO. 335
her dower, and any creditor who lent money for the purchase or
conservation of the subject of hypothecation, e. g. to buy the land
or build the house, or build, or buy, or equip the ship, that is
hypothecated.
3. Simple hypothecary creditors, who have priority according to
the date of their mortgage.
4. Privileged chirographary (merely personal) creditors, or cre-
ditors unprotected by mortgage. Privileged are creditors who lent
money for the repair of a house ; for the purchase, construction, or
equipment of a ship; or depositors of money, without interest, in
the hands of the insolvent as banker (argentarius, mensularius).
5. Unprivileged personal creditors, Savigny, § 374; Vangerow,
§ 598.
DE ACQUISITIONE PER ARROGATIONEM ET PER IN MANUM
CONVENTIONEM.
§ 82. Sunt autem etiam alterius
generis successiones quae neque
lege XIi tabularum neque praetoris
edicto, sed eo iure (quod) consensu
receptum est, introductae sunt.
§ 83. Etenim cum pater familias
ge in adoptionem dedit, mulierve in
manum conuenit, omnes eius res in-
corporales et corporales quaeque ei
debitae sunt, patri adoptiuo co-
emptionatoriue adquiruntur, ex-
ceptis his quae per capitis deminu-
tionem pereunt, quales sunt usus-
fructus, operarum obligatio lber-
timorum quae per iusiurandum con-
tracta est, et lites contestatae legi-
timo iudicio.
$ 84. Ex diuerso quod ts debu:t,
qui se in adoptionem dedit quaeue
in manum conuenit, non transit ad
coemptionatorem aut ad patrem
adoptiuum, nisi s? hereditarium aes
slienum fuerit. tunc enim quia
ipse pater adoptiuus aut coemption-
ator heres fit, directo tenetur iure ;
is wero qui se adoptandum dedit
quaeue in manum conuenit, desinit
esse heres. de eo uero quod proprio
$ 82. There are other kinds of
universal succession not governed by
the law of the Twelve Tables nor by
the praetor’s edict, but by rules of
consuetudinary law.
§ 83. When a paterfamilias gives
himself in adoption, or a woman
subjects herself to a fictitious pur-
chaser, all their pvoperty, incor-
poreal and corporeal, and all debts
due to them, are acquired by the
adoptive father and the fictitious
purchaser, excepting such rights as
are extinguished by loss of status—
usufruct, for instance, bounden ser-
vices of freedmen secured by oath,
and claims in respect of which there
has been joinder of issue in a sta-
tutory trial.
§ 84. Conversely, for what was
owed as an inherited debt by
the person adopted or the woman
subjected to hand, the fictitious
purchaser or adoptive father, by
acquiring the succession, becomes
directly liable, while the person
adopted and woman sold into sub-
jection are released from liability
by ceasing to be successors at civil
law; but if the debt was owed in
836
nomine eae personae debuerint, licet
neque pater adoptiuus teneatur
neque coemptionator, et me ipte
quidem qui se in adoptionem dedit
quaeue in manum conuenit, maneat
obligatus obligatawe, quia sctlicet
per capitis deminutionem liberetur,
iamen in eum eamue utilis actio
datur rescissa capitis deminutione ;
et si aduersus hane actionem non
defendantur, quae bona eorum
futura fuissent, si se alieno iuri
non subiecissent, uniuersa uendere
creditoribus praetor permittit.
DE RERUM UNIVERSITATIBUS.
[rr. $$ 82-84.
their own name, their adoptive
father or fictitious purchaser incurs
no liability while the person
adopted and woman sold into sub-
jection cease to be liable at civil
law, their liability being extin-
guished by their loss of status : they
are liable, however, in a praetorian
action based on a feigned restora-
tion of their status (4 $ 38), and
if the action is not defended the
goods which would have belonged
to them but for their degradation
may be all sold by their creditors
on obtsining the requisite permis-
sion of the praetor.
§ 84. See 1, 97-107 Comm., 1, 159-164. By arrogation a man
descended from the superior status of paterfamilias to the inferior
status of filiusfamilias, from domestic independence to domestic
dependence. It operated, that is to say, a degradation (capitis
minutio minima). Capitis minutio minima had various effects on
a man's rights and obligations :—
(a) As it implied a change of family, it entailed a loss of rights
founded on agnation, including the sworn services of a freedman,
for the patron was treated in certain circumstances as a quasi agnate.
(b) It had further effects which perhaps we must be contented
at the present day to regard as merely positive and inexplicable.
Thus it extinguished any ususfructus or usus vested in the arrogatus.
This effect was abrogated by Justinian, Cod. 3, 83, 1652.
(c) It extinguished debts owed by the arrogatus. As a filius-
familias was just as capable at civil law of incurring debts as a
paterfamilias, it is hard to say why the passage from one condition
to the other should operate an extinction of debt. Ihering sug-
gests that when the lex curiata required in Adrogatio was a reality,
it was not enacted until all proved debts of Adrogatus were dis-
charged; and that the publicity of the proceeding made unin-
jurious to the creditors what the protection of Adrogator required —
the ipso facto extinction of all debts not proved before the enact-
ment of the law. But when the people was merely represented by
thirty lictors, and Adrogatio became comparatively a private pro-
ceeding, the old rule had ceased to be just, and was practically
abolished by the Praetor’s Restitutio in integrum.
nmr$$85-87.] HEREDITATIS IN JURE CESSIO. 337
Arrogatio in the legislation of Justinian ceased to operate a
iransfer of the universitas juris. It only conveyed to the arro-
gator a life estate (ususfructus) in the property of the arrogatus.
The reversion or fee (dominium) remained in the arrogatus, Inst.
3, 10, 2.
Coemptio is not noticed by Justinian, as the in manum conventio
of the wife was obsolete long before his time.
DE HEREDITATIS IN JURE CESSIONE.
$ 85. |/tem si legitimam here-
ditatem. heres, antequam cer|nat aut
pro herede gerat, alzi in iure cedat,
pleno iure fit ille heres, cui cessa
est hereditas, proinde ac si ipse per
legem ad hereditatem uocaretur.
quodsi posteaquam heres extiterit,
cesserit, adhuc heres manet et ob id
creditoribus ipse tenebitur; sed res
corporales transferet proinde ac si
singulas in iure cessisset, debita
uero pereunt, eoque modo debitores
hereditar#i lucrum faciunt.
$ 86. Idem iuris est, si testamento
scriptus heres posteaquam heres ex-
titerit, in lure cesserit hereditatem ;
ante aditam uero hereditatem ce-
dendo nihil agit.
$ 87. Suus autem et necessarius
heres an aliquid agant in iure ce-
dendo quaeritur. nostri praecep-
tores nihil eos agere existimant ;
dinersae scholae auctores idem eos
agere putant, quod ceteri post
aditam hereditatem; nihil enim
interest, utrum aliquis cernendo
aut pro herede gerendo heres fiat,
an iuris necessitate hereditati ad-
stringatur.
§ 85. If a person entitled to suc-
ceed as agnate to an intestate, before
declaring his acceptance or acting
as heir, surrender the inheritance in
& fictitious vindication, the plenary
right of succession passes to the
surrenderee exactly as if he were
entitled by agnation. If the agnate
first accepts and then surrenders,
he continues heir, and is liable to
the creditors for the debts of the
deceased : the corporeal subjects of
the inheritance pass just as if they
were separately surrendered, but
the debts to the inheritance are ex-
tinguished and the debtors are dis-
charged of liability.
§ 86. The same happens when a
devisee accepts and then surrenders,
but before acceptance his surrender
is inoperative.
§ 87. Whether a self-successor or
8 necessary successor passes the suc-
cession by surrender to a fictitious
vindicator, is a question. Accord-
ing to my school they have not the
power : the other school think that
the effect is the same as when the
other heirs surrender after accept-
ance, and that it makes no difference
whether a man is heir by legal com-
pulsion or by formal acceptance or
by acts of heirship.
§ 85. Gaius now proceeds to another mode of conveying a juris
universitas, the conveyance by an agnate of a delated but not
accepted inheritance. Cf. 2 §§ 84, 85. We must bear in mind:
Z
338 DE OBLIGATIONIBUS. [1r. $$ 88, 89.
the distinction between heres and vocatus ad hereditatem, the offer
(delatio) of an inheritance by the law or by a testator, and its final
acquisition (aditio, aequisitio) by the delatee (2 § 152) In the
case of the heres necessarius, the self-successor and the testator’s
manumitted slave, delatio and acquisitio coincide; but in the case
of the voluntarius heres, the agnate or the extraneus scriptus, they
are two distinct events. An explanation of the causes of the
different effects of an in jure cessio by these different classes might
have thrown some light on this branch of early Roman law, but
the reasons are not given by Gaius, and perhaps we must now
be content to regard these distinctions as merely positive and
inexplicable rules. Perhaps, as Ihering suggests, it was held,
that to permit a devisee to part with the inheritance—in other
words, to convert it into money—would have been in direct
opposition to the testator’s intention; who, if he approved of
such a step, might have adopted the mode of testation explained
on 2 § 185, i.e. might have instituted not the devisee but his
slave.
Successio per universitatem, as already mentioned, was an in-
stitution only recognized by the legislator in a limited number of
cases: one individual could not make another, in pursuance of
private convention, his universal successor. In respect of the
voluntary transfer, inter vivos, of an inheritance, universal suc-
cession was only admitted in two cases: transfer by an agnate of
delata hereditas (of his right to acquire an intestate succession)
in the interval between delatio and aditio, and transfer (restitutio)
by a devisee of a fideicommissaria hereditas in pursuance of a
testamentary trust, 2 § 246.
The usual conveyance of an inheritance was not by in jure
cessio, but by emptio venditio accompanied with tradition and
stipulations respecting the debts to or from the inheritance,
2 6 252.
DE OBLIGATIONIBUS.
§ 88. Nune transeamus ad ob- $ 88. We proceed to treat of
ligationes. quarum summa diuisio obligations, which fall into two
in duas species diducitur: omnis principal classes, obligations created
enim obligatio uel ex contractu by contract and obligations created
nascitur uel ex delicto. by delict.
$ 89. Et prius uideamus de his — $89. We first treat of those which
nr. $$ 88, 89.] SOLUTIO. 339
quae ex contractu nascuntur. we founded on contract, which are
harum autem quattuor genera of four orders, for contract is con-
sunt: aut enim re contrahitur ob- cluded by performance, by words,
ligatio aut uerbis aut litteris aut by writing, or by consent.
consensu.
Having examined Unequal primary real rights (status) and a
portion of Equal primary real nghts, namely, property and ser-
vitudes, and omitting the detailed examination of another portion
of Equal primary real rights, namely, Primordial rights, we quit
the subject of real rights, jura in rem, negative rights, or rights to
forbearances binding indifferently all the world, and proceed to Obli-
gations, jura in personam, positive rights; that is to say, rights to
certain aets or performances binding exclusively certain individuals.
The law of Obligation, at least of obligation founded on contract,
differs from other branches of law in that its function is rather
auxiliary to human freedom than restrictive or coercive. While
the law of Status and the law of Property are imperious and
peremptory and felt by the fetters they impose on human volition,
the law of Contract is ministerial to manifestations of will, and
fosters and protects the most diversified activity and enterprize.
The law of Contract is the most plastic part of the code and the
part most susceptible of development: it is the portion of, Roman
jurisprudence which has survived with least alteration in modern
Europe; and of all modern codes it is the portion whose relative
importance is already the greatest and is continually increasing.
The Obligation which is a subject of jurisprudence implies com-
pulsion : Debitor intelligitur is a quo invito pecunia exigi potest,
Dig. 50, 16, 108. * Debtor (obliged) denotes a person from whom
money may be extorted against his will:’ i.e. it excludes merely
moral duties (officia) because the sovereign applies no coercion to
enforce their performance.
Obligation, in the narrower sense in which we proceed to use
the term, also excludes those duties which the legislator imposes on
all the world alike towards a person invested with a Real right,
whether a Primordial right, à right of Status, or a right of Do-
minion. These duties are mainly negative, duties of forbearance
or abstention ; whereas Obligations in the narrower sense, the sense
in which the word is used by the classical jurists, are mainly
positive, duties of action or performance. The former, that is,
negative obligations, obligations correlative to jus in rem, have
scarcely received a distinctive appellation in the Latin language:
Z2
340 DE OBLIGATIONIBUS. [rrr. §§ 88, 89.
for the sake of distinction from moral duties they may be called
Necessitas, and for the sake of distinction from Positive duties,
Necessitas abstinendi.
Justinian defines Obligation as follows: Obligatio est juris vin-
eulum quo necessitate astringimur alicujus solvendae rei secundum
nostrae civitatis Jura, Inst. 8, 18. ‘ Obligation is a legal bond, that
is, the being compelled to some performance by the law of the state
(power of the sovereign).
Having formerly divided Obligations into Primary and Secondary,
we may inquire which of these classes is more directly contemplated
in this definition. Apparently the class of Secondary obligations:
at least the definition is not applicable to all cases of Primary
obligation. In Obligations ex contractu the necessitas both of the
Primary and the Secondary obligation is a necessitas solvendi:
in Obligation ex delicto while the necessitas of the Secondary
obligation is necessitas solvendi; the necessitas of the Primary
obligation (there is no Obligation in the classical sense of the term)
is not necessitas solvendi but necessitas abstinendi.
The performance (solutio) of which the law imposes a necessity
when it imposes an obligation is sometimes decomposed into three
elements, expressed by three terms, datio, factio, praestatio. In
personam actio est quotiens cum aliquo agimus qui nobis ex
contractu vel ex delicto obligatus est, id est, cum intendimus dare,
facere, praestare oportere, 4 § 2. ‘A personal action pursues an
obligation arising from contract or delict, and declares that the
defendant is bound to convey, perform, or indemnify.’ Obliga-
tionum substantia non in eo consistit ut aliquod corpus nostrum
aut servitutem nostram faciat, sed ut alium nobis obstringat ad
dandum aliquid vel faciendum vel praestandum, Dig. 44, 7, 3.
‘An obligation does not subject a thing corporeal or incorporeal
to our dominion, but compels a person to convey some dominion,
or render some service, or repair some loss) Datio denotes the
transfer of quiritarian dominion in a certain thing or sum of
money: Factio any service (traditio, restitutio, exhibitio, &.) other
than the transfer of quiritary dominion in a certain thing: and
. Praestatio, apparently, the discharge of any obligation engendered
by maleficium.
However diversified may be the Object of an obligation, it is
always transformable, in the eye of the law, into the payment of a
certam sum of money. Ea enim in obligatione consistere quae
es s -" ome
rn. §§ 88, 89.] NATURAL OBLIGATION. 341
pecunia lui praestarique possunt, Dig. 40, 7, 9, 2. ‘ Obligation
can only have for its Object something redeemable and replaceable
by money.” Hence if it is desired to bind to the performance of
some act not in its nature susceptible of pecuniary appreciation, it
is necessary to make the direct Object of stipulation the payment of
a certain penal sum, and the non-performance of the act desired
the title or condition whereupon the penal sum shall be forfeited ;
for then the obligation, having a pecuniary value, is a civil obliga-
tion enforceable by the tribunals. The performance of the act
desired is thus practically enforced, although nominally it is
removed from the position of Object of the stipulation to that of
Condition.
In speaking of the right of Dominion, we have already noticed
(2 $ 1, commentary) that besides the primary oBjEcT of the right
(abstention from molestation), there is always a secondary object or
SUBJECT, land, house, slave, or the like, to which such molestation
relates. So, in view of this transformability of all Objects of
obligation into money payments, we may say that the osJEcT of
every obligation is an Alienation, or transfer of property ; and the
SUBJECT is always a certain amount of Pecuniary value.
The primary and most comprehensive division of Obligatio is one
that has already been noticed, 1 § 1, into (A) civirIs obligatio, and
(B) xATURALIS obligatio.
(A) Crviris obligatio is obligation enforceable by action, whether
it derives its origin from Jus civile, as the obligation engendered
by formal contracte or the obligation enforceable by bilaterally
penal suits, or from such portion of Jus gentium as had been com-
pletely naturalized in the civil law and protected by all its remedies ;
such as the obligation engendered by Formless contracts, and
obligation to indemnify engendered by delict.
(B) Obligatio NATURALIS is obligation not immediately enforce-
able by action, or obligation imposed by that portion of Jus
gentium which is only imperfectly recognized by Civil law; obliga-
tion, however, which is recognized by Positive law in various
operations, e.g. as founding a defence called Exceptio, 1.e. a con-
tention that the right of the plaintiff, though not nullified, is
counteracted by an opposing right of the defendant; as giving a
right of Retention (barring condictio indebiti soluti) and Compen-
sation; and as forming a basis of various Accessory institutes of
Civil law, such as Novatio, Pignus, Fidejussio, Constitutum.
342 DE OBLIGATIONIBUS. [ 111. $$ 88, 89.
Naturalis obligatio, with its partial and occasional protection,
may seem @ singular and anomalous institute of Roman law, but it
is paralleled by the recognition, though to a very minor extent,
of Imperfect obligations in English jurisprudence. Imperfect
obligations are so called, not because they are less binding in the
forum of conscience than those which are perfect, but because they
are not directly enforced by political sanctions, because various
motives induce the political legislator to exempt the debtor from
positive coercion. Instances of imperfect obligation are debts
barred by a statute of limitations, and debts discharged by ad-
judication of bankruptcy. A written promise to pay by the bank-
rupt or debtor discharged by limitation, perfects and revives the
imperfect obligation, and makes it ground to support an action.
As in English law a merely moral duty is an inadequate considera-
tion to support and validate a promise to pay, the validity of such
ratificatory promises shows conclusively that the obligation of the
insolvent, and of the debtor discharged by limitation, is regarded
in English jurisprudence as something more than a moral obliga-
tion, as, to a certain extent, a legal obligation; that is, is viewed
by English tribunals in the light in which naturalis obligatio was
viewed by Roman tribunals.
Civil obligations fall under two principal classes: (1) those to
which the title or investitive fact is a CONTRACT; and (2) those
to which the title or investitive fact is a pDELICT. In obligation
created by contract there are two stages: there is first a primary
or sanctioned Personal right antecedent to wrong, and afterwards -
a secondary or sanctioning Personal right consequent on a wrong.
In obligation founded on pzLicT there is the second stage, a
secondary or sanctioning Personal right consequent on a wrong, but
the first stage is not a Personal right (jus in personam), but a Real
right (jus in rem), whether a Primordial right, right of Status, or
of Property.
These two typical classes, however, fail to comprehend all the
obligations enforceable by action, and two supplementary classes
have to be added: (3) obligations similar to those founded on
contract; and (4) obligations similar to those founded on
delict.
A Contract is a convention or agreement (conventio, pactio,
pactum) enforceable by appeal to a court of judicature. Et est pactio
duorum pluriumve in idem placitum consensus, Dig. 2, 14, 1, 2.
ux $$ 88, 89.] PACTA VESTITA. 343
‘ A convention is the consent of two or more parties that a party
shall do or not do some particular thing.’
Consensus, the essence of convention, will be found on close
examination to consist not, as might at first sight appear, of two
precisely similar elements contributed by the two consenting parties,
but of two dissimilar elements, an intention signified by a promisor,
and a corresponding expectation signified by a promisee. The pro-
misor promises that he will do or perform some given act or acts,
or that he will forbear or abstain from some given act or acts; that
is, he signifies to the promisee that he intends to do the acts or to
observe the forbearances which form the object of his promise: and
the promisee accepts the promise; that is, signifies to the promisor
his belief or expectation that the latter will do or forbear agreeably
to the intention which he has expressed. Every convention, then,
consists of a promise proffered and accepted ; that is, (1) of a signi-
fication by the promising party of his intention to do the acts or to
observe the forbearances which he promises to do or observe, and
(2) a signification by the promisee that he expects that the promis-
ing party will fulfil the proffered promise. Without signification
of the intention there is no promise; without signification of the
expectation there is no reason for enforcing the promise. The
consensus of the parties is the chiming or going together of this
intention with this expectation; their direction to a common
object, the acts or forbearances contemplated by the convention.
Pollicitation is the offer of the one party before it is accepted by
the other. Pactum est duorum consensus atque conventio; pollici-
tatio vero offerentis solius promissum, Dig. 50, 12, 3.
A leading division of contracts or conventions enforceable by
action is into FORMAL contracts, or contracts of civil law (legitimi,
Dig. 2, 14, 5), and FoRMLxss contracts, or contracts of Jus
gentium. Formal contracts are Nexum, Verbal contract or Stipu-
latio, and Literal contract or Expensilatio, Formless contracts are
Real (Mutuum, Commodatum, Depositum, Pignus, Innominate
contract), or Consensual (Emptio, Locatio, Societas, Mandatum).
Formal contracts derive their validity from the observance of a
symbolic form prescribed by positive law, and calculated to inspire
by ite solemnity serious reflection in the negotiators, and to distin-
guish definitive resolution from preparatory negotiation and debate.
In Real contract the earnestness and definitiveness of the resolution
is proved by one contractor parting with property or possession.
314 DE OBLIGATIONIBUS. [x1 $$ 88, 89.
The obligation, too, contracted by the other party is perfectly plain,
being in most cases simply restitution. In Exchange (permutatio),
an Innominate contract, the duty of the promisor is not quite so
simple; it is not restitution, but the transfer of an equivalent; and,
aecordingly, the validity of the contract of Exchange was not
established till a comparatively late period of Roman jurisprudence.
The daily and hourly employment of the Consensual contracts of
Purchase and Hiring, while it would make the requirement of any
formality intolerably inconvenient, also renders the nature of these
contracts perfectly familiar to all the world, so that the mere men-
tion of their Names awakens as vivid a picture of their consequences
as could the observance of the most ceremonious Form. In the
remaining Consensual contracts, Agency and Partnership, the posi-
tion of the Agent or Partner who is called to account for property
that has passed into his hands or that has been lost by his
negligence is so similar to that of a party to a Real contract that
there could be no hesitation in extending to these contracts the
protection of the public tribunals.
A convention that was neither valid by its Form, nor was one
of the four Consensual contracts with their familiar Names, nor
was a Real contract, that is, a convention where on one side the
consideration (causa praeter conventionem, Dig. 2, 14, 7, 4) was
executed, nor was made valid by the edict or any special statute,
was not directly enforceable at law, and was called a Nudum pactum.
A Nude pact, though ineffectual to produce civilis obligatio, pro-
duces naturalis obligatio. Igitur nuda pactio obligationem non
pant, sed parit exceptionem, Dig. 2, 14, 7, 4. ‘A nude pact creates
no (civil) obligation, but creates a defence Interest on a loan
could only be secured by the Formal contract of Stipulatio: but
a nude pact to pay interest could be confirmed by pignus, Dig. 13,
7, 11, 8, and could be pleaded in bar to a suit for recovering back
the interest when actually paid (condictio indebiti soluti): and we
have seen that exceptio, pignus, solutum non repeti, are some of
the criteria which indicate the existence of naturalis obligatio,
Dig. 46, 3, 5, 2.
Another important division of contracts is into UNILATERAL
and BILATERAL. Wherever mutual promises are proffered and
accepted there are in strictness two or more conventions; but where
the performance of either of the promises is made to depend on the
performance of the other, the several conventions are cross or impli-
111. $$ 88, 89.] NEXUM. 345
eated conventions, and therefore are commonly deemed one conven-
tion. Where one only of the agreeing parties gives a promise, the
proffered and accepted promise is called a Unilateral convention ;
where each gives a promise, and the performance of either is made
to depend on the performance of the other, the several proffered and
accepted promises are called a Bilateral or Synallagmatic conven-
tion. But strictly speaking, as before stated, every convention is
Unilateral, and every Bilateral convention is formed by the impli-
eation of several Unilateral conventions. The sole Unilateral con-
ventions are Expensilatio, Stipulatio, Mutuum. Venditio, Locatio,
Societas, are examples of Bilateral conventions. Depositum, Com-
modatum, Pignus, Mandatum, are called imperfectly Bilateral con-
ventions, because they do not necessarily and originally produce
any reciprocal obligation, but only ex postfacto, i. e. in consequence
of some occurrence subsequent to the convention. The action
founded on the original obligation of a semi-bilateral convention,
i.e. the action of the depositor, lender for use, pawnor, principal,
is called judicium directum : the action founded on the accidental
or ex postfacto obligation, i. e. the action of the depositary, borrower
for use, pawnee, agent, is called judicium contrarium. Unilateral
conventions, even though, like Mutuum, institutions of Jus gen-
tium, give rise to condictiones or actions of strict civil law (stricti
juris actiones) ; bilateral and semi-bilateral conventions give rise to
equitable actions (bonae fidei actiones).
The terms Unilateral and Bilateral have already been used to
differentiate the genus of Contract, Disposition: and it may be
useful to notice the difference of meaning which these terms bear
in the two connections. A Unilateral Disposition is one made by
a solitary principal disposer: e.g. in testamentary disposition all
other persons who intervene are accessory and subordinate to the
testator. A Bilateral Disposition, or Contract, or Convention, is
one where there are two coordinate principal disposers. A Uni-
lateral convention is one where there is a single promisor and
a single acceptor: a Bilateral convention is one where there are
two promisors and two acceptors, that is, where both parties are
equally promisors and acceptors.
The classification of contracts by Gaius does not include the
Nexum. Nexum apparently had three functions: it was a solemn
form of alienation (including testamentary disposition), a solemn
form of obligation, and a solemn form of extinction of obligation.
346 DE OBLIGATIONIBUS. [ru $$ 88, 89.
Si quid eo nomine debeatur quod per aes et libram gestum est,
86178. Nexum, Mucius Seaevola scribit, quae per aes et libram
fiant ut obligentur praeterquam quae mancipio dentur, Varro, 6, 5.
* Nexum, according to Scaevola, is any disposition which employs the
bronze ingot and balance, either to produce an obligation or to aliene
dominion.’ Nexum est, ut aft Gallus Aelius, quodcunque per aes
et libram geritur, idque mecti dicitur; quo in genere sunt haec,
testamenti factio, nexi datio, nexi liberatio, Festus, under the
word ‘Nexum.’ ‘Nexum, according to Aelius, is any disposi-
tion by means of the bronze ingot and balance, including
testamentary disposition, formation of contract, discharge of con-
tract.
As a form of obligation or Contract Nexum was apparently a
fiction of a money loan (mutuum, certa pecunia credita) : 1.e. what-
ever the origin of the obligation, emptio, locatio, or agreement to
pay interest, &c., the debtor was transformed by nexum info a
borrower: he was suable by condictio; and if he was condemned
and made default in satisfying the Judgment he was liable to manus
injectio; i.e. to be taken into court in order that the praetor might
award personal execution; in other words deliver him as a quasi-
slave to the creditor (addicere, duci jubere).
In this function, i.e. as a form of solemn contract based on the
fiction of a loan, Nexum was abolished by the lex Poetelia, Livy,
8, 28: in its other functions, as a form of alienation (mancipatio),
and a form of extinction of obligation (acceptilatio), Nexum con-
tinued to exist in the time of Gaius, 3 § 173. Savigny, Vermischte
Schriften, 19.
The subsequent modes of Formal contract, Literal and Verbal,
seem like Nexum to have rested on a fiction of a loan of money.
We are expressly told this of Expensilation or Literal contract,
§ 129; and the etymology of Stipulatio (stips— pecunia) seems to
show that verbal contract also was originally based on the sup-
position that money had passed between the creditor and debtor.
But though Expensilatio and Stipulatio resembled Nexum in being
fictions of a loan and ground to support Condictio certi, they did
not resemble it in rendering the judicatus in such a condictio liable,
on default of satisfying the judgment, to personal execution.
The arrangement adopted by Gaius is not without significance.
He begins with a Real, that is, a Formless contract, found in the
code of Natural law; and from these Real contracts he selects
rr. §§ 90, 91.] RE CONTRACTA OBLIGATIO. 347
Mutuum, the type, that is to say, which Formal contracts sub-
sequently imitated and feigned. He then proceeds to Formal
contracts, Verbal and Literal; and concludes with the remaining
class of Formless contracts, namely the Consensual, This is per-
haps the chronological, as well as the logical, order in which
contracts were developed.
QUIBUS MODIS RE CONTRAHATUBR OBLIGATIO.
$ 90. Re contrahitur obligatio
uelut mutui datione. (mutut au-
tem datio) proprie in his [fere]
rebus contingit quae pondere nu-
mero mensura constant, qualis est
pecunia numerata uinum oleum
frumentum aes argentem aurum.
quas res aut. numerando aut me-
tiendo aut pendendo in hoc damus,
ut accipientium fiant et quandoque
nobis non eaedem, sed aliae eius-
dem naturae reddantur. unde
etiam mutuum appellatum est, quia
quod ita tibi a me datum est, ex
meo tuum fit.
$ 91. Is quoque qui non debitum
accepit ab eo qui per errorem sol-
uit, re obligatur. nam proinde ei
condici potest SI PARET EVM DARE
OPORTERE, ac ri mutuum accepis-
set. unde quidam putant pupillum
aut mulierem cui sine tutoris auc-
toritate non debitum per errorem
datum est, non teneri condictione,
non magis quam mutui datione.
sed haec species obligationis non
uidetur ex contractu consistere,
quia is qui soluendi animo dat,
magis distrahere uult negotium
quam contrahere.
$ 90. Of real contracts, or con-
tracts created by performance, we
have an example in loan for con-
sumption, or loan whereby property
is transferred. This chiefly relates
to things which are estimated by
weight, number, or measure, such
as money, wine, oil, corn, bronze,
silver, gold. We transfer our pro-
perty in these on condition that the
receiver shall transfer back to us
at a future time, not the same
things, but other things of the same
nature: and this contract is called
Mutuum, because thereby meum
becomes tuum.
§ 91. The receiver of what was
not owed from a person who pays
in error is also under a real obliga-
tion, for he may be sued by Con-
dictio with the formula: ‘If it be
proved that he ought to convey,’
just as if he had received the pro-
perty in pursuance of a loan. And,
accordingly, some have held that
a ward or female, if their guardian
has not authorized them to receive
8 payment, are not liable to be sued
for money paid in error any more
than they are for money received
as a loan. This, however, is a mis-
take, as the liability is not founded
on contract, for a payment in order
to discharge a debt is intended to
extinguish an obligation, not to
establish one.
§ 90. The thing to be restored by the borrower in a loan for con-
sumption was not the specific thing that was borrowed, but some
other thing of the same genus. Such members of a genus as are
348 DE OBLIGATIONIBUS. [111. $$ 90, 91.
naturally capable of mutual substitution (quae vice mutua fungun-
tur) received from modern civilians the barbarous name of res
fungibiles, A more significant barbarism, if any was necessary,
would have been res vieariae, from the principal word of the
definition. The classical name was neither res fungibilis, nor res
vicaria, but Quantitas, Dig. 44, 2, 7, pr.
§ 91. The auctoritas of the guardian was only wanted to supply
the will or intention required in a disposition or contract. As
Condictio indebiti, the action brought for recovering money paid
by mistake, was not founded on disposition or contract, but on the
fact that a defendant had been without cause enriched at the ex-
pense of the plaintiff, there seems to be no reason why it should
not be brought against a ward who receives without his guardian's
sanction money to which he is not entitled, except that the ward
could not repay the money unless the guardian sanctioned the
repayment. Justinian decides that the ward is not under the
circumstances liable to condictio indebiti, Inst. 3, 14, 1.
The obligation arising by a contract of mutuum is only an obli-
gation to repay the principal of the debt. The loan is regarded as
gratuitous; if any interest is intended to be paid, it requires to be
secured by an accompanying verbal contract, or stipulation. The
repayment of the principal was enforced by the general personal
action of condictio. See 4, 49 comm.
Connected with the contract of mutuum was the senatuscon-
sultum Macedonianum, named, according to Theophilus, after a
parricide, according to some commentators, after a money-lender.
This decree passed, according to Tacitus, under Claudius (Annales,
11, 18), according to Suetonius, under Vespasian (Suet. Vesp. 11),
prohibited lending money to a person under power (filiusfamilias)
without the consent of the father. Neither the age nor the rank
of a filiusfamilias affected his incapacity to contract a pecuniary
loan. The disability of the filiusfamilias did not extend to any
contract other than a pecuniary loan.
By the English law bargains made with expectant heirs and
remaindermen, during the lifetime and without the knowledge of
the parent, may be set aside b y a court of equity on the ground of
unfairness or inadequacy.
Besides the mutuum there are four other Real contracte, Com-
modatum, Depositum, Pignus, Innominate contract; each of which
requires a brief notice.
iui. $$ 90, 91.] HYPOTHECA. 349
Commodatum, a loan for use, is the gratuitous lending of an
article to be used by the borrower. It must be gratuitous, for, if
any compensation is to be paid, the transaction ceases to be a com-
modatum, and becomes a letting and hinng (locatio conductio). A
loan for use differs from a mutuum, or loan for consumption, in that
it passes no property to the borrower. Accordingly, in a loan for
use the specific thing that was lent is to be returned, whereas in
a loan for consumption it is only to be returned in kind. Again,
in ease of destruction by an inevitable accident, as fire, shipwreck,
or invasion, in à mutuum the loss falls on the borrower, in a com-
modatum on the lender. The commentators have expressed this by
the formula, res perit domino, *the loss from destruction falls on
the proprietor’; and this proposition holds good of contracts of
mutuum and eommodatum and some others; but in a sale (emptio
venditio), as soon as the obligation is complete, before the property
has passed by delivery to the buyer, if the thing is destroyed without
the fault of the vendor, the loss falls on the buyer, and he can be
compelled to pay the purchase-money, although the subject of sale
has never been in his possession, Inst. Just. 8, 28 § 3. We must
not identify the borrower's right to use, which consists in an
obligation, with the servitude (jus in re) or fraction of proprietor-
ship called Usus, which is created by other methods and governed
by different rules. (For the law relating to the liability of com-
modatarius and other bailees on account of negligence, see comm.
at the end of this book.)
Depositum is the delivery of a thing for custody, to be re-
delivered on demand, without compensation. It is properly gra-
tuitous, for if a compensation is to be given it is & contract of
hiring and letting, and not a deposit. The property remains in
the depositor; the depositary has sometimes Possession, but, as a
rule, merely Detention. The identical thing that was deposited
is to be returned, not an equivalent of the same kind or quality,
as in mutuum. An involuntary depositor, that is, one under stress
of shipwreck, fire, civil commotion, the fall of a house, can sue in
penal damages for twice the value of the deposit. Sequestration is
the deposit of a subject of htigation by consent of parties or order
of the court in the hands of a stakeholder (sequester) to abide the
result of the trial When a depositary is bound to restore not a
specific thing (idem) but ite equivalent, and by a pactum adjectum
pays interest for the privilege of using it in the interim ; e.g. when
350 DE OBLIGATIONIBUS. (mx. $$ 90, 91.
a banker pays interest to his depositors; the convention is called
Depositum irregulare, and dominion in the thing deposited, as well
as possession, passes to the depositary. Dig. 16, 3, 24, The
passages in the Digest relating to this show that Banking in the
modern sense of the word, i.e. the payment of a small interest to
depositors and receipt of a large interest from borrowers of the
deposit, was practised by Roman Mensularii, Vangerow, § 630.
Pignus, pledge, pawn, or mortgage, is the transfer of a qualified
property (jus in re aliena) in a thing, movable or immovable, to be
held as a security for a debt, and to be retransferred when the debt
is satisfied.
There are three forms of Pignus, corresponding to three eras
in the development of Roman law, which must be separately
examined.
(1) The earliest form of pledge was effected by a mancipatio
or in jure cessio, accompanied with a fiducia, or contract for
reconveyance. This ceremony was employed in the contract of
pledging, in the contract of deposit, and as we have seen, 1 § 182,
in the emancipation of children, cf. 2 § 60.
(2) Pignus was effected by delivery of possession without the
solemnities of mancipatio. The mortgagor continued to be pro-
prietor of the thing pledged.
(3) Hypothecation was effected by mere convention without deli-
very of possession. It was a pure Alienation of a jus in re, imposing
no Obligation. Pignus combined this with Obligations of the
mortgagee, conferring a Personal action on the mortgagor.
. The action of the mortgagee to recover the thing pledged, called
quasi Serviana, hypothecaria, or pigneraticia, was a real action or
vindicatio. It was probably an actio arbitraria with a formula
in factum concepta (these terms will be explained in Book IV,
§ 47 comm.) to something like the following effect: ‘If it be
proved that such and such land (being the property of the de-
fendant) was mortgaged by the defendant to the plaintiff as security
for the payment of such and such a debt, and that such debt has
not been paid [factum], do thou, Judex, condemn the defendant in
damages to the amount of the loss that the plaintiff shall have
sustained, unless at thy order he deliver such land to the plaintiff
or pay the said debt [arbitrium]; in absence of such proof, pro-
nounce the defendant's absolution.’ As the Intentio is not in jus
concepta, it contains no definition of the nature of the right, real
ni$$90,91. NAMELESS REAL CONTRACT. 351
or personal, which the plaintiff alleged. We know that in the
present case it was a real right.
Besides the actio Hypothecaria, whereby the rights of the mort-
gagee were definitively decided, there was an Interdictum Salvianum,
4 § 147, to enable the mortgagee to recover interim or provisional
possession of the thing mortgaged pending the definitive litigation.
Ite formula was probably something like the following: ‘ If such
and such a slave is one of the things respecting which you agreed
with the plaintiff that whatever was inducted, illated, imported
into such and such land, or was thereon born or produced, should
be pledged to the plaintiff to secure the payment of the rent of
such land; in that case I prohibit your employment of force to
hinder the plaintiff from abducting the slave) Thus the relation
of actio Hypothecaria to interdictum Salvianum would resemble
that of Vindicatio to the interdict Utrubi or Uti possidetis, 4 $ 148,
or that of Hereditatis petitio to the interdict Quorum bonorum,
4 $ 144.
Innominate or unnamed contract is a Bilateral convention for
reciprocal performances followed by execution on the part of one
of the contractors. A bilateral Convention followed by execution
is Real; not followed by execution it is Consensual. Bilateral
conventions, Real or Consensual, fall into four classes: Aut enim
do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias,
Dig. 19, 5, 5, pr. ‘There may be conveyance in consideration of
conveyance, or conveyance in consideration ‘of performance, or
performance in consideration of conveyance, or performance in con-
sideration of performance. Some of such conventions, though not
followed by execution, would give rise to Named consensual con-
tracts, sale, letting, partnership, or mandate; and then would
be enforced by the tribunals: while those conventions un-
accompanied by execution whose nature excluded them from these
appellations, would have no legal validity. Those conventions
which to consensus add execution, but fail to satisfy the definitions
of the Named Real contracts, are thrown into a miscellaneous
class called contracts Innominate. We have thus the following
classification, Contracts are (1) Formal (verbis) or informal, and
then either (2) not real but named (consensual), or (3) real and
named (mutuum), or (4) real but nameless (innominate). To what-
ever category innominate contracts belonged, do ut des, do ut
facias, facio ut des, facio ut facias, they were enforceable by a civil
352 DE OBLIGATIONIBUS. [mrr. $$ 90, 91.
action called actio in factum praescriptis verbis. Dig. 9, 5, 15,
ibid. 22, ibid. 25.
The binding virtue of execution or delivery (traditio) was one
of the oldest principles of Roman law. In traditionibus rerum,
quodeunque pactum .sit, id valere, manifestissimum est, Dig. 2, 14,
48 (from the commentary of Gaius on the Twelve Tables): and
this principle was, perhaps, the basis of the ordinance, Cum nexum
faciet mancipiumque, uti linguá nuncupassit, ita jus esto: which
afterwards remained in force when the traditio in a disposition by
Nexum was merely symbolic.
The actio in factum praescriptis verbis was so denominated because,
in the absence of a generic name for the contract, the fact begetting
the obligation was detailed at length in the demonstratio of the
formula: Actio quae praescriptis verbis rem gestam demonstrat,
Cod. 2, 4, 6. Hence it is often called actio in factum praescriptis
verbis. This, however, is a misleading name, because it might
lead us to suppose that the formula had an intentio in factum.
But it is a civil action, and the formula contains the word ‘ oportet '
(quidquid ob eam rem illum illi dare facere oportet), that is to say,
has an intentio in jus, cf. 4 $$ 45, 46, The name of this Roman
action ex contractu may be illustrated by a comparison with the
name of an English action ex delicto, trespass on the case, so
named from the comparative particularity with which the cireum-
stances of the plaintiff's case are detailed in the written allegations.
It is sometimes called actio civilis ?ncerí? because it is brought to
recover damages (quanti interest).
Examples of Innominate contract are Exchange (permutatio),
Dig. 19, 4; Compromise (transactio), Dig. 2, 15; Cod. 2, 4; Con-
ditional sale (aestimatum), that is to say, a promise to pay a certain
price for an article if the promisor succeeds in reselling it at a
profit, with a power, in the opposite event, of returning the article
to the promisee, Dig. 19, 8; and Permissive occupancy (precarium),
or permission, at the request (precibus) of the grantee, to use an
article without compensation, with a proviso for redelivery on
demand. The precarious grantee (precario rogans), as a rule, has
Possession, but by special agreement may have mere Detention;
whereas the borrower for use (commodatarius) in every case has
only Detention.
Praescriptis verbis was an equitable action (ex fide bona) to
recover not merely the value conveyed, but also damages for the
rr. $$ 92-96. ] STIPULATIO. 353
loss sustained by the plaintiff from default of specific performance.
When the executed part of the convention was a conveyance, if
restitution was a sufficient compensation, the thing conveyed might
be recovered back by condictio caus& datá, causéi non secutá, i.e. a
suit to recover property conveyed for a consideration which has
failed. ‘ Praescriptis verbis is brought to recover, not restitution,
but damages equal to the plaintiff's interest in a specific perform-
ance. Restitution may be enforced by a suit for reconveyance
upon failure of consideration.’ Dig. 19, 5, 5 §1.
It may illustrate the Roman conception of Innominate or Real
contract if we indicate the change that has supervened in this
matter from the greater force that is conceded to mere convention
(nuda voluntas) in modern jurisprudence.
With the Romans the execution by one of the parties of his part
of an Innominate bilateral convention was essential to its efficacy.
This execution differentiated the convention from a nudum pactum
and gave it validity, but, naturally, only against the party who had
not executed. The party who had executed was not similarly bound:
he had a right of abandoning the contract and recovering back
what he had delivered, not merely when the counter-execution was
not made at the time appointed, or had become impossible by the
culpa of the other party, or had been always impossible (condictio
ob causam non secutam); but when the party who had delivered
simply changed his inclination (condictio ex mera poenitentia).
In German jurisprudence, on the contrary, where every pactum
is treated as if it had been accompanied by Stipulation, that is, had
the validity given by Form— where, in other words, no pacta are
nuda, all are vestita —2 convention is enforceable irrespectively of its
part-execution : it is enforceable irrespectively of execution against
both parties alike, who herein stand on precisely the same footing :
that is to say, the party who has delivered what he had to deliver
has no right to recover it back either ex mera poenitentia, or ob
causam non secutam, but merely the power to compel the other
party to a corresponding performance. Vangerow, $ 599.
DE VERBORUM OBLIGATIONE.
$92. Verbis obligatio fit ex § 92. A verbal contract is formed
interrogatione et responsione, ue- by question and answer, thus: ‘Art
luti DARI SPONDES? SPONDEO, DA- thou sponsor to me for the convey-
»181 DABO, PROMITTIS? PROMITTO, ance?’ ‘I am sponsor to thee for the
A8
354
FIDEPROMITTIS ? FIDEPROMITTO, FI-
DEIVBES } FIDEIVBEO, FACIES} FA-
CIAM.
$ 93. Sed haec quidem uerborum
obligatio DARI SPONDES? SPONDEO
propria ciuium Romanorum est;
ceterae uero iuris gentium sunt,
itaque inter omnes bomines, siue
ciues Romanos siue peregrinos, ua-
lent. et quamuis ad Graecam uo-
cem expressae fuerint, ueluti hoc
modo (Adces; Adcw' ‘Opodoyeis ;
“Opodoya’ THiores keAeveic ; Diores xe-
Acta’ Iloijjces; lloro), [etiam
haec] tamen inter ciues Romanos
ualent, si modo Graeci sermonis
intellectum habeant. et e contrario
quamuis Latine enuntientur, tamen
etiam inter peregrinos ualent, si
modo Latini sermonis intellectum
habeant. at illa uerborum obligatio
DARI SPONDES ? SPONDEO adeo pro-
pria ciuium Romanorum est, ut ne
quidem in Graecum sermonem per
interpretationem proprie transferri
possit, quamuis dicatur a Graeca
uoce figurata esse,
$ 94. Vnde dicitur uno casu hoc
uerbo peregrinum quoque obligari
posse, ueluti si imperator noster
principem alicuius peregrini populi
de pace ita interroget PACEM FYTV-
RAM SPONDES uel ipse eodem modo
interrogetur. quod nimium sub-
tiliter dictum est, quia si quid ad-
uersus pactionem fiat, non ex stipu-
latu agitur, sed iure belli res uin-
dicatur.
$95. Illd dubitari potest, si
quis |
DE OBLIGATIONIBUS.
[xnr. $6 92-96.
conveyance. ‘ Wilt thou convey ?’
‘I will convey.’ ‘Dost thou pledge
thy credit?’ ‘I pledge my credit.’
‘Dost thou bid me trust thee as
guarantor ?’ * I bid thee trust me as
tor.’ ‘Wilt thou perform ?
‘I will perform.’
§ 93. The formula: “‘ Art thou
sponsor ?' ‘I am sponsor,’ " is only
valid between Roman citizens; the
others belong to gentile law, and
bind all parties, whether Romans
or aliens, and, if understood, bind
Romans when expressed in Greek,
and aliens when expressed in Latin.
The formula, ‘ Art thou sponsor ?’ is
so peculiarly Roman that it cannot
be expressed in Greek, though the
word ‘sponsor’ is said to have a
Greek origin,
$ 94. According to some, there ia
one case in which an alien may
be bound by this word, namely,
when & Roman emperor in con-
cluding a treaty thus interrogates
& foreign sovereign: *Art thou
sponsor for peace ?’? and a Roman,
they hold, may similarly be bound
to an alien, But here the word
bound is not used in its civil mean-
ing, for the violation of a treaty
between sovereign states is not re-
dressed by the legal process of a
suit founded on stipulation, but by
martial process and the arbitrement
of the sword.
$95. (It may be questioned
whether if the question is in the
form ‘Art thou sponsor?’ and the
nr. $$ 92-96. ]
$ 95a. (Sunt et aliae obliya-
tiones, quae nulla praecedente. in-
terrogatione contrahi possunt, td
est ut si mulier siue. sponso. uxor
futura sive tam marito dotem dicat.
quod tasn de mobilibus rebus quam
de fundis fieri potest. Et mon
solum in hac obligatione ipsa mu-
lier obligatur, sed et pater eius, et
debitor ipsius mulieris, st pecuniam
quam tlli debebat, sponso creditricis
ipse debttor in dotem dixerit. Hae
tantum tres personae nulla inter-
royatione praecedente possunt dic-
tione dotis legitime obligari. | aliae
wero personae si pro muliere dotem
uiro promiserint, communi ture
obligari debent, td est ut et inter-
rogata respondeant et stipulata pro-
mittant.
$ 96. ltem et alio casu uno to-
quente et sine interrogatione. alis
promittente contrahitur | obligatio,
td. est st libertus patrono aut donum
aut munus aut operas se daturum
esse turautt, in qua re supra dicti
liberti non tam uerborum | sollem-
nitate quam turisiurandi religione
tenentur ; sed nulla altera. persona
hoe ordine obligari potest.) haec
sola causa est, ex qua iureiurando
contrahitur obligatio. sane ex
alia nulla causa iureiurando
homines obligantur, utique cum
quaeritur de iure Romanorum.
nam apud peregrinos quid iuris
sit, singularum ciuitatium iura re-
quirentes aliud intellegere pote-
rimus —.
FORMAL CONTRACT.
855
answer to it is, ‘I promise, or ‘ft
will give,’ any legal obligation js
created.)
§ 95a. (There are also other ob-
ligations which can be contracted
without any antecedent question, as
when & woman makes a solemn de-
claration settling a dotal estate,
movable or immovable, on her be-
trothed or her husband. And not
only can the woman herself be
bound in this form, but also her
father and her debtor, the latter
having to declare that he owes
the debt to her future husband as
dower. It is only by these three
persons that dower can be promised
without using the common form of
question and answer.
§ 96. There is another case in
which an obligation ig contracted
by a declaration of one of the
parties without any previous inter-
rogation, which is when a freedman
takes an oath to his patron pro-
mising some payment or perform-
ance of some function or service,
the obligation being created in this
case not so much by the form of
words as by the sanctity attaching to
the oath. This is the only instance
in Roman law of an obligation being
contracted by means of an oath,
though if we searched the parti-
cular laws of foreign communities,
other instances might be found.)
§ 92. Before we proceed to examine Formal, that is to say,
Verbal and Literal contracts, it is desirable, at the risk of some
repetition, to review the general nature of Title.
A Title is a fact, incident, or event, to which the law annexes
a right or obligation; or it is a fact by which the law confers a
right or imposes an obligation on a person; or it is an incident
A 8 2
356 DE OBLIGATIONIBUS. [rr. $$ 92-96.
through which the law invests a person with a right or obligation ;
or, extending its function, it is an event which gives a beginning
or pute an end to a right or obligation; it is a fact, incident, or
event, whereby the law invests with a right or diveste of a right ;
or a fact, incident, or event, whereby the law burdens us with an
obligation or exonerates from an obligation.
When this fact is a lawful act designed to invest in the mode
prescribed or permitted by the legislator certain persons with certain
rights and obligations, it is called a Disposition (Rechtsgeschaeft).
Dispositions, e.g. contract, release, alienation, emancipation, adop-
tion, marriage, testation, succession, joinder in issue (litis contesta-
tio), &c. are as diversified in character as are the parts of the statute
book of which they are applications: but nevertheless have many
common or generic features which demand, what they have not re-
ceived in text books of English jurisprudence, a common examination.
The rights conferred through a title may be jura in rem, avail-
able against all the world, including both rights of status and righte
of property ; or jura in personam, available only against a determinate
person. It is with the latter that we are at present concerned.
The facts called Titles, whether they confer a jus in rem or a
jus in personam, are never absolutely elementary,—are always de-
composable into a bundle of more elementary facts. Nevertheless,
and with this reservation, Titles may be divided into such as are
comparatively simple, and such as are comparatively complex.
The bundle of facts composing a comparatively complex Title
can usually be divided into two portions, one of which may be
called principal or essential, the other secondary or adventitious.
For instance, in the bundle of facts composing an alienation, or
creating a jus in rem, the essential or principal portion is the free
will and intention of the alienor to divest himeelf of a right and
invest the alienee with it, and the acceptance of the proffered right
by the alienee: the accessory and adventitious portion is the signi-
fication of these intentions by the execution of a certain written
instrument or deed, and their completion by the solemn delivery
and acceptance of seisin or possession.
A Formal Disposition is one for which, under pain of nullification,
the necessary or exclusively valid form of expression or mani-
festation of intention is prescribed by the legislator. A Formless
Disposition is one where the individual is free to choose the form
of expressing, or mode of manifesting, his intention.
ur $$ 92-96.] FORMAL CONTRACT. 357
These accessory formalities and solemnities are ancillary to the
essential purpose of the transaction, being destined partly to prevent
rash and inconsiderate engagements, partly to furnish evidence and
proof of the convention or principal part of the transaction.
Indeed, the accessory portion of the Title may contain an element
still more remotely and casually connected with the principal
transaction, such as the stamp affixed to the document executed
by the parties. The stamp in no way contributes to the purpose
and intention of the parties, but the legislator makes it necessary
to the validity of the transaction from financial motives, for the
sake, namely, of the publie revenue.
Setting aside this purely arbitrary addition to the Title, we may
say that the function of the Title is not only to be the antecedent
to which the law annexes as a consequent a certain right or obliga-
tion, but also to be a sign, badge, or manifestation, to denote to the
world the person in whom a right has vested, or on whom an
obligation has become incumbent.
The peculiar characteristic of Formal, that is to say, Verbal and
Literal contracts, is this: evidentiary solemnities compose in these
contracts an indispensable part of the title to a jus in personam.
The Formless contracts, namely, the Real contracts, of which we
have already treated, and the Consensual contracts, of which we
shall treat hereafter, cannot, indeed, be enforced in a court of law
unless they are proved to have been concluded, unless, that is,
evidenee be given of their existence. But the contract and the
evidence of the contract are distinct and independent. In Formal
contracte & preappointed evidence of the essential portion of the
contract, that is, of the intention of the promisor and expectation
of the promisee, is made by the legislator a constituent accessory
element of the contract or title itself. It is not perfect or complete
without this evidence. If the transaction did not include certain
preappointed evidentiary formalities, the Verbal or Literal contract
has never been formed and does not exist.
$ 93. Why was Sponsio binding on Romans and not on strangers ?
Possibly because originally it was an oath or adjuration of the
tutelary gods of Rome, who would not be an object of reverence to
a stranger.
§ 94. The obligation of an independent sovereign state to
another independent sovereign state does not resemble the obliga-
tion of one subject to another subject of the same sovereign or
358 DE OBLIGATIONIBUS. [1m. $$ 92-96.
political superior. If a contract between two subjects is broken,
it is enforced by the power of the common sovereign. But if a
treaty between two sovereigns is violated, there is, by hypothesis,
no common superior by whom it may be enforced. The treaties of
sovereign states correspond to the moral obligations of individuals.
They may be binding in the forum of conscience or of heaven, but,
if these are disregarded, are not enforced by any earthly tribunal.
The moral obligation is not secured by any legal sanction; and
the sovereign whose treaty rights are violated can obtain no redress
except from his own power of inflicting evil on the violator.
Or we may compare the relation of sovereign states to the re-
lation of individuals before the complete establishment of political
society. There is then sufficient intercourse to form a public
opinion and certain conceptions of rights and wrongs; but not
sufficient organization to dispense with the necessity of self-
vindication or self-defence. In such a state the redress of the
individual for the harms he suffered was by feud or private war.
That such a state once existed we know from the early history
of our ancestors and their Teutonic kinsmen. So the redress of
sovereigns is war or public feud. In the controversies of indi-
viduals the system of private war was abolished in this country
by the proclamation of ‘the king’s peace,’ renewed at every coro-
nation—the symbol of the consolidation of central authority. For
the controversies of peoples no such abrogation of warlike process
seems possible,
Jus in the expression jus belli appears to signify not right or
law but sanction, or executive power, or means of compulsion. That
this was one of the many meanings of the word appears from Ovid,
who uses the following terms to express a want of self-control:
Nam desunt vires ad me mihi jusque regendum. Amor, 2, 4.
The necessity of employing any consecrated terms in a stipulation
was abrogated by a constitution of Leo, dated the calends of
January, A.D. 469. Omnes stipulationes, etiamsi non solennibus
vel directis sed quibuseunque verbis consensu contrahentium com-
positae sunt [vel], legibus cognitae suum habeant firmitatem, Cod.
8, 38, 10. ‘Stipulations, though not in consecrated formulas or
direct terms, in whatever words the agreement of the parties is
expressed, if otherwise legal, shall have binding force.’
$$ 95a, 96. The text is taken from the epitome of Gaius, 2, 9, 3,
contained in the law of the Visigoths (Breviarium Alariei).
m1. § 97-109.] DE INUTILIBUS STIPULATIONIBUS. 359
The following passage of Ulpian respecting the modes of con-
stituting dos may be compared with § 95a. Dos aut datur, aut
dicitur, aut promittitur. Dotem dicere potest mulier, quae nuptura
est, et debitor mulieris, si jussu ejus dicat, item parens mulieris
virilis sexus, per virilem sexum cognatione junctus, velut pater, avus
paternus. Dare, promittere dotem omnes possunt, Fragm. 6 $$ 1, 2.
By a constitution of the Emperor Theodosius II any third person
was made capable of binding himself by a simple promise of dower
without a stipulation.
Jurata promissio liberti was the sworn promise of a freedman,
immediately after his manumission, to render certain services
(operae) to his patron.
It was usual to bind the conscience of the
slave by a similar promise before manumission ; but such a promise
had no legal operation.
The right of a patron to the operae of his
freedman was put an end to by the capitis diminutio of either
patron or freedman, § 88, patronatus being assimilated to agnatio.
DE INUTILIBUS STIPULATIONIBUS.
$ 97. Si id quod dari stipulamur,
tale sit, ut dari non possit, inutilis
est stipulatio, uelut si quis homi-
nem liberum quem seruum esse
credebat, aut mortuum quem uiuum
esse credebat, aut locum sacrum
uel religiosum quem putabat hu-
mani iuris esse, dari (stipuletur.
$ 97a. Item si quis rem quae in
ferum natura esse non potest, uelut
hippocentaurwn,) stipuletur, aeque
inutilis est stipulatio,
§ 98. Item si quis sub ea condi-
cione stipuletur quae existere non
potest, ueluti si digito caelum teti-
gerit, inutilis est stipulaéio. sed
legstum sub inpossibili condicione
relictum nostri praeceptores pro-
inde deberi putant, ac si sine con-
dicione relictum esset; diuersae
scholae auctores nihilo minus lega-
tum inutile existimant quam stipu-
lationem. et sane uix idonea di-
uersitatis ratio reddi potest.
$ 97. The impossibility of a
stipulated conveyance vacates the
stipulation ; for instance, if a man
stipulates for the conveyance of a
freeman whom he supposes to be
a slave, or of a dead slave whom he
supposes to be alive, or of ground
devoted to the celestial or infernal
gods which he supposes to be a
subject of commerce.
$ 97 a. Or again if a man stipu-
lates for a non-existent thing, such
as a hippocentaur, the stipulation
is void.
§ 98. An impossible condition,
that the promisee, for instance,
should touch the sky, makes the
stipulation void, although a devise
with an impossible condition, ac-
cording to the authorities of my
school, has the same effect as if the
condition were not annexed. Ac-
cording to the other school it is as
null and void as if it were a stipu-
lation, and in truth no satisfactory
reason can be alleged for making
@ distinction.
360
§ 99. Praeterea inutilis est stipu-
latio, si quis ignorans rem suam
esse, dari sibi eam stipuletur;
quippe quod alicuius est, id ei dari
non potest.
§ 100. Denique inutilis est talis
stipulatio, si quis ita dari stipule-
tur POST MORTEM MEAM DARI SPON-
DES uel ita (POST MORTEM TVAM
DARI SPONDES?, ualet autem, st quis
ita dari stipuletur CVM MORIAR
DARI SPONDES | uel ita) CVM MO-
RIERIS DARI SPONDES? id est ut
in nouissimum uitae tempus stipu-
latoris &ut promissoris obligatio
conferatur. nam inelegans esse
uisum est ab heredis persona in-
cipere obligationem. rursum ita
stipulari non possumus PRIDIE QVAM
MORIAR, aut PRIDIE QVAM MORI-
ERIS DARI SPONDES quia non po-
test aliter intellegi *pridie quam
aliquis morietur, quam si mors
secuta sit; rursus morte secuta in
praeteritum reducitur stipulatio et
quodammodo talis est HEREDI MEO
DARI SPONDES? quae sane inutilis
est.
§ 101. Quaecumque de morte
diximus, eadem et de capitis demi-
nutione dicta intellegemus.
$ 102. Adhuc inutilis est stipu-
latio, si quis ad id quod interro-
gatus erit, non responderit, ueluti
si sestertia X a te dari stipuler, et
tu sestertia 7 promittas, aut si ego
pure stipuler, tu sub condicione
promittas.
$ 103. Praeterea inutilis est sti-
pulatio, si ei dari stipulemur, cuius
iuri subjecti non sumus. unde illud
quaesitum est, si quis sibi et ei
cuius iuri subiectus non est, dari
stipuletur, in quantum ualeat sti-
pulatio. nostri praeceptores putant
in uniuersum ualere et proinde ei
soli qui stipulatus sit, solidum de-
beri, atque si extranei nomen non
adiecisset. sed diuersae scholae
auctores dimidium ei deberi existi-
DE OBLIGATIONIBUR.
[rrr. $$ 97-109.
$ 99. So a stipulation to convey
the promisee's property to the pro-
misee is null and void, for the con-
veyance is impossible,
§ 100. A stipulation to convey
after the death of the promisee or
promisor is invalid, but a stipula-
tion to convey at the death, that is,
at the last moment of the life of the
promisee or promisor, is valid. For
it has been held anomalous to make
the successor of either of the con-
tracting parties the first subject of
the obligation. Again, a stipula-
tion to convey on the day before
the death of the promisee or pro-
misor is invalid, for the day before
the death cannot be ascertained till
after death, and after death the
time is past. for performance to
the promisee, and the stipulation
amounts to a promise to convey to
the promisee’s successor, which is
void.
§ 101. What is said of death must
also be understood of loss of status.
§ 102. Another cause of nullity is
the want of correspondence between
the question and answer ; if I stipu-
late, for instance, for ten sestertia
and you promise five, or if you meet
my absolute stipulation by a condi-
tional promise.
§ 103. No valid stipulation can
be made to convey to a person who
has not power over the stipulator,
whence the question has been
mooted to what extent a stipulation
for payment to the stipulator and
& stranger is valid. My school hold
that it is valid for the whole sum
stipulated, and that the stipulator
is entitled to the whole, just as if
the stranger had not been men-
tioned. The other school hold that
mm. § 97-109.] DE INUTILIBUS STIPULATIONIBUS. 361
mant, pro altera uero parte in-
utilem esse stipulationem.
$103 a. Alia causa est | DARI
SPONDES | | ——- solidum deberi et
me | solum etiam Titi|o —.
§ 104. Praeterea inutilis est sti-
pulatio, si ab elo stipuler qui iuri
meo subiectus est, item si is a me
stipuletur. (sed) seruus quidem
et qui in mancipio est et filia fami-
kas et quae in manu est non solum
ipsi cuius iuri subiecti subiectaeue
sunt, obligari non possunt, sed ne
alii quidem ulli.
$ 105. Mutum neque stipuleri
neque promittere posse palam est.
idem etiam in surdo receptum est;
quia et is qui stipulatur, uerba
promittentie, et qui promittit, uerba
stipulantis exaudire debet.
$ 106. Furiosus nullum negotium
gerere potest, quia non intellegit
quid agat.
$107. Pupillus omne negotium
recte gerit, «t tamen, sicubi tutoris
auctoritas necessaria sit, adhibeatur
(tutor), ueluti si ipse obligetur;
nam alium sibi obligare etiam sine
tutoris auctoritate potest.
$ 108. Idem iuris est in feminis
quae in tutela sunt.
$ 109. Bed quod diximus de pu-
pillo, utique de eo uerum est qui
iam aliquem intellectum — babet.
nam infans et qui infanti proximus
est, non multum a furioso differt,
quia huius aetatis pupilli nullum
intellectum habent; sed in his pu-
pilis propter utilitatem benignior
juris interpretatio facta eet.
he is only entitled to one moiety,
and that the stipulation is of no
effect as to the other.
$ 103 a. It is a different case if
you promise to convey something
to me or Titius, for then the whole is
due to me, and I also can sue on the
stipulation though the debt may be
discharged by payment to Titius.
$ 104. No valid stipulation can
be made between & person under
power and the person to whom he
is subject. A slave, a person in
mancipation, a daughter and a wife
subjected to the hand of a husband,
can incur an obligation neither to
the person in whose power or man-
cipation they are, nor to any other
rson.
$ 105. The dumb cannot stipu-
late or promise, nor can the deaf,
for the promisee in stipulation must
hear the answer, and the promisor
must hear the question.
$106. A lunatic cannot enter
into any contract because he has
no judgment of consequences.
§ 107. A ward can enter into
any contract provided that he has
his guardian’s authority when ne-
cessary, as it is for incurring an
obligation, although not for im-
posing an obligation.
$ 108. The same rule applies to
women who are wards.
$109. This concession of legal
capacity to wards is manifestly
reasonable in respect of children
approaching the age of twelve or
fourteen; and children who have
only just completed their seventh
year, though resembling lunatics in
want of intelligence, are permitted,
with a view to their interests, to
have the same capacity as those
approaching twelve or fourteen.
$97. A stipulation was inutilis, i.e. originally (ipso jure) null
and void, which conferred no right on the promisee even though
362 . DE OBLIGATIONIBUS. [urr. $$ 97-109.
the promisor alleged no counter right (exceptio). When this was
clear, the praetor would not permit the promisee to sue (actionem
denegare), Dig. 45, 1, 27.
Among the objects that could not be secured by stipulation, and
still less by any Formless contract, are Dispositions under the code
of Family law (the laws governing domestic relations) or the code
of Succession. E.g. no promise of marriage (sponsalia) was legally
binding— striking contrast to the rule of English law, Nor do
we hear of any binding agreement to a future Emancipation, Adop-
tion, or Árrogation ; or for the principal acte relating to the law
of Succession, to the execution of a Will or to the aditio of an in-
heritance. In all these solemn Dispositions the Roman legislator
deemed it expedient that the disposer should have an entire free-
dom of choice at the moment of making the Disposition.
§ 98. This seems an appropriate place for the following remarks
on the general nature of conditions. A Condition is an element
of Title; it is a certain contingent occurrence or non-occurrence,
performance or non-performance, by arbitrary appointment con-
ferring on a certain person a certain night, or imposing on him
a certain obligation. It may be defined as the middle term (B)
of a syllogism of which the minor term (C) represents a person,
and the major term (A) a right or obligation, and of which both
the premisses are Contingent. It is the last feature that we shall
first proceed to consider.
The major premiss must be contingent; it must be an arbitrary
determination that makes the right or obligation (A) depend on the
given title (B); the nexus between the middle and major terms
must be solely the will of the testator or contractors, not the will
of the legislator; the title must not be in its own nature the Neces-
sary presupposition of the right. E. g. in the following cases: the
institution of a person as heir, sf he survive the testator, tf he accept
the inheritance ; the bequest of a legacy, af the hetr accept the in-
heritance; the promise of a dower, if the marriage is celebrated ; the
seeming condition is required by the law, and its expression is
superfluous: such an event, therefore, is not a genuine condition.
Again, the nexus between the minor and middle terms may be
either the will of the person entitled (conditio potestativa), Cod. 6,
51, 7, or chance (conditio casualis); but one way or other the
minor premiss must be contingent; the fulfilment of the condition
must be neither Necessary nor Impossible: it must be a future and
m. §§ 97-109.] CONDITIONS. 363
uncertain contingency whether the title (B) shall be realised or
fulfilled in respect of a given person (C). The condition, accord-
ingly, must not be a past or present event, e.g. if Titius was consul
last year, if Titius is now consul; such a fact is now certain and
Necessary, and any disposition contingent thereon is really un-
conditional. )
The effect of an Impossible condition is different in Contracts
and Testamentary dispositions; it invalidates contract; whereas in
a testament it is deemed unwritten (pro non scripto habetur), and
the disposition is regarded as unconditional. This was the rule
that finally prevailed, Dig. 85, 1, 1 § 8. ‘It has been finally
decided that impossible conditions to testamentary dispositions are
mere surplusage. This was the doctrine of the Sabinians, and was
confirmed by Justinian, Inst. 2, 14, 10. Illegal and immoral con-
ditions followed the same rule as impossible conditions. The
question why Contracts and Wills were governed by different rules,
which Gaius admits to be obscure, may receive some light from the
following considerations. Testamentary dispositions in their nature
are acts of liberality on the part of the testator. Even when he
employs them as inducements to an illegal or immoral act, it is not
quite certain that the refusal to perform the act would deprive the
devisee of his liberality. At all events, the devisee is innocent of
unlawful intention, and the same cannot be said of the contractor
who is guilty of an agreement to violate the law. Accordingly,
the law aids the devisee but not the contractor; and the rule,
once established for immoral conditions, was extended to impossible
conditions.
On this point the French code agrees with the Roman law.
In the Austrian code the Proculeian doctrine is followed : 1. e. tes-
tamentary dispositions as well as contracts are invalidated by im-
moral or impossible conditions. The Prussian code follows a middle
course : impossible conditions invalidate a testamentary disposition ;
immoral conditions are deemed unwritten and the disposition is
construed as unconditional,
A Condition was not annexable to all dispositions. It was an-
nexable to all Testamentary dispositions: but among dispositions
inter vivos the only ones to which it could, at least in the earlier
jurisprudence, be annexed were Obligations. A Condition could
not be annexed to an In jure cessio or judicial surrender: Nulla
legis actio prodita est de futuro, Frag. Vat. 49. Nor to Manci-
364 DE OBLIGATIONIBUS. [nr. $$ 97-109.
patio, nor to Ácceptilatio, nor to Expensilatio (Literal Obligation)
nor to Cognitoris datio. Sub conditione cognitor non recte datur,
non magis quam mancipatur, aut acceptum vel expensum fertur,
Frag. Vat. 829. Nor could it be annexed to magisterial Tutoris
datio: Sub conditione a praesidibus provinciarum non posse dari
tutorem placet, et si datus sit nullius esse momenti dationem, Dig.
26, 1, 6, 1: nor to Tutoris auctoritas, Dig. 26, 8, 8: nor to heredi-
tatis aditio, nor to servi optio: Actus legitimi qui non recipiunt
diem vel conditionem, veluti mancipatio, aeceptilatio, hereditatis
adilio, servi optio, datio tutoris, in totum vitiantur per temporis
vel conditionis adjectionem, Dig. 50, 17, 77.
Later jurisprudence admitted the annexation of conditions to
the alienation of property by means of Tradition. Conditions are
Suspensive or Resolutive. Tradition coupled with a Suspensive
condition operates an immediate transfer of possession and a future
transfer of ownership contingent on, and contemporaneous with,
the fulfilment of the condition, p. 202. "Tradition, coupled with
a Resolutory condition, operates two transfers of ownership: an
immediate transfer of ownership and a subsequent retransfer of
ownership, contingent on, and contemporaneous with, the fulfilment
of the condition. The retransfer of dominion follows without any
retradition or reconveyance by the interim proprietor; and the
remedy of the original proprietor is not condictio, implying the
necessity of reconveyance, but vindicatio, implying that he is
already reinvested with dominion. The justa causa or disposition
which accompanies the tradition and determines the transfer of
property (2 § 20), also limits the duration of the property so trans-
ferred. Such at least is the doctrine of the majority of jurists :
others hold that the fulfilment of the resolutive condition only
imposes on the transferree a personal obligation of reconveyance.
Conditions annexed to contracts have the following difference
from conditions annexed to testamentary dispositions and dis-
positions translative of dominion. Conditions annexed to contract
are retroactive: the obligation determined by their fulfilment
relates backward and dates from the date of the contract. Con-
ditions annexed to legacy or to alienation are not retroactive: the
obligation or ownership thereby conferred only dates from the
fulfilment of the condition.
We have seen that conditions were excluded from Expensilatio
or Literal contract: it was their admissibility in Stipulatio that
i. § 97-109.] PAYMENT TO A THIRD PERSON. 365
made the latter, unlike Expensilatio, a generic or universal form
of contract: a contract equally applicable whatever the object that
the contractors desired to secure. Primitive jurisprudence only
recognized stipulations whose object was a datio or conveyance
of property ; not stipulations whose object was a factio or non-
factio, some other kind of performance or forbearance. But when
facere or non facere was allowed to form the Condition of an obli-
gation whose object was & dare, that is, when the payment of
& penal sum could be made contingent on the non-performance
or performance of a certain act, it became possible to stipulate,
virtually or indirectly at least, for factio or non-factio as well as
for datio. Savigny, § 116, Ihering, Vangerow, § 98.
§ 100. As to the rights conferred or obligations imposed by
a contract on third persons not parties to the contract Paulus lays
down the following principle : Quaecunque gerimus, cum ex nostro
contractu originem trahunt, nisi ex nostra persona obligationis
initium sumant, inanem actum nostrum efficiunt: et ideo neque
stipulari neque emere vendere contrahere, ut alter suo nomine recte
agat, possumus, Dig. 44, 7, 11, i.e. in every contract where the
apparent contractors are the real contractors, i.e. are not agents
but principals, the right created by the contract must primarily
vest, if the contract is to be valid, in the promisee himself; and
the obligation in the promisor himself. This rule is evidently
not violated if the promisee associates to himself his heir, i.e.
contracts for some right to himself and heir: Suae personae ad-
jungere quis heredis personam potest, Dig. 45, 1, 38, 14: but it is
violated if the promisee contracts for some right to vest exclusively
in his heir, or, as expressed in this paragraph, for some performance
post mortem suam. Such contracts aecordingly were void, whether
they belonged to the civil or the gentile code, $ 158. This led to
the introduction of an Adstipulator when a person wished to sti-
pulate something exclusively for the benefit of his heir, $ 117.
When Justinian abrogated the rule and ordained that an act could
be Contracted to be performed either before or after the death of
either of the contractors, Cod. 4, 11, 1, the Adstipulator became
unnecessary. |
The rule of Paulus would make a promise of payment to the
promisee and a stranger void as to the latter, $ 103.
'The same rule applied to the passive obligation a contract imposed :
the debtor created by a contract could not be in the first instance
366 DE OBLIGATIONIBUS. fanz. $$ 97-109.
the heir of the promisor, $ 158. One intelligible motive for
prohibiting obligations from taking effect on the death of the
promisor would be to prevent evasions of the testamentary laws
restricting the powers of testation. A testator who wished to
leave a legacy to a person who could not take under a will from
want either of Capacitas or of passive Testamentifactio, or a legacy
beyond the amount permitted by the lex Falcidia or some other
law, would enter into a Stipulation, binding his heir to pay a
certain sum after the death of the promisor. 'The promisee then
eould recover this sum not as legatee but as creditor under the
stipulation. That such evasions were in fact attempted appears
from Dig. 22,3,27. Ihering. Is this opening of a door to fraudu-
lent evasions the evil that Gaius intends to express by ‘ Inelegance,’
a somewhat unintelligible term? Justinian, however, abolished
the distinctions recorded in this paragraph, and allowed the sti-
pulation of an act to be performed either for the heir of the pro-
misee, or by the heir of the promisor, Inst. 3, 19, 13.
§ 103. A slave or filiusfamilias who stipulated a payment to
himself acquired an obligation for the master or paterfamilias. He
could also stipulate directly a payment to the master or parent.
Except in these relations, it was the rule that a man could not stipu-
late for payment to a third person. Payment, however, to a third
party might be secured by a penal clause, stipulating, in default
of performance, payment of a penal sum to the promisee, Inst.
3, 19, 19. !
The rule of the Civil law that a Formal contract could only be
concluded between principale—between persons covenanting im
their own names, was an impediment in the way of commerce
which was met, as we have already stated, by a double use of a
Consensual contract, which will presently be examined, the contract
of Agency (mandatum). An Agent or mandatary stipulated in his
own name with a third person, and then ceded his right of action
to his principal; that is, made his principal his mandatary: the
principal then sued and recovered on the stipulation as Cessionary
of the action, that i8, as mandatary of his mandatary. In the latest
period the actual Cession of the action was unnecessary: the praetor
allowed the principal to sue by an actio Utilis, i.e. either an action
whose formula contained a Fiction, with whose precise nature we
are unacquainted, but perhaps to the effect that the principal was
the universal successor of the agent, or an action with a formula in
ur.$$97-109. PAYMENT TO A THIRD PERSON. 367
factum concepta. In respect of Formless contracts, or contracts
governed by Jus Gentium, the institute of Agency was more com-
pletely recognized. lf an Agent merely acted as emissary (nuncius)
and instrument (minister) of his principal, that is, contracted in the
name of his principal, the principal aequired an immediate right
against the third contractor and incurred a direct obligation to him:
he could sue him or be sued by him in an actio Directa—he was not
driven to an actio Utilis or Fictitia. In this respect the distinction
between Formal and Formless contracts may be thus expressed : in
Formal contracts the Civil law requires both elements of the Title
or Disposition, the essential element (intention to create an obliga-
tion) and the evidentiary element (the declaratory question or
answer) to be acts of the same person: in Formless contracts Gen-
tile law allows these elements to be sundered ; allows the essential
part (intention) to be the act of one person, the Principal, and the
declaratory part (the formless external manifestation of this inten-
tion) to be the act of another person, the Agent. See § 162, comm.
If then it was desired to contract for payment to a third person, it
was only necessary that the contractor should not attempt to do as
principal what he could only do as agent, or to do without Cession
what could only be done by means of Cession. Even if he neglected
these precautions it did not inevitably follow that his contract was
inefficacious. Paulus, indeed, Dig. 44. 7, 11,]ays down the principle
which we have already, $100, noticed : * Every disposition in which
a person contracts as principal but attempts to entitle a third
person to sue as principal (i.e. attempts to invest a third person
with the nights of an immediate creditor) is invalid: and neither
by formal contract of stipulation, nor by formless contract of
purchase and sale, nor by any other contract in which I am prin-
cipal can I invest a third person with a right to sue in his own
name.’ But this rule was not so important as at first sight it
might appear: for if the third person by subsequent ratification
made the contractor his negotiorum gestor, i.e. his representative
or agent (procurator) the contract became valid. Savigny, Obli.
gation, $ 59. We have already mentioned, § 100, that in Justi-
^ mian's legislation a contractor could contract for a payment to or
by a third person, when that person was his own successor.
The controversy between the Sabinians and Proculeians is
decided in favour of the latter by Justinian, who enacts that a
stipulation for payment of a sum to the promisee and a stranger
368 DE OBLIGATIONIBUS. [1n. $$ 97-109.
entitles the promisee to payment of half the sum and is void as
to the remainder, Inst. 8, 19, 4. In a Formless contract the
Sabinian doctrine still prevails, Dig. 18, 1, 64.
$109. The age of puberty, as we have seen, was 14 for males,
12 for females. Before this period the child was called impubes:
up to the age of 7 he was called infans. In the interval between
7 and 14 he was described either as infantiae proximus or as pu-
bertati proximus. According to some commentators the interval
was equally divided between these appellations, so that from 7 to
10} a boy was infantiae proximus, and from 10} to 14 pubertati
proximus. According to Savigny these names only covered the space
of & year measured from each limit, so that from 7 to 8 a child
was infanti proximus, from 18 to 14 puberi proximus, and from 8
to 18 without any distinctive appellation. Cf. 1, 142, comm.
The principal peculiarity that results from the nature of verbal
and literal contracts and distinguishes them from other conventions
is, that other conventions are not legally valid unless the promisor
be shown to get a quid pro quo, that is, unless an adequate con-
sideration be proved : whereas verbal and literal contracte, securing
by the solemnity of their formalities due deliberation on the part
of the contractors, are valid in favour of the promisee without
proof of consideration.
Although, however, the want of consideration did not absolutely
invalidate a stipulation, yet it constituted a counterpoising right of
the promisor which might be pleaded by the exceptio doli mali or
non numeratae pecuniae. The exception of dolus malus was allowed
by Marcus Aurelius (4. D. 169—176) to be pleaded in all actions of
civil law.
. 1f instead of generally alleging fraud (Si in ea re nihil dolo
malo Auli Agerii factum est neque fit), the plea alleged the par-
ticular fact of non-payment (exceptio in factum composita), it was
called exceptio pecuniae non numeratae. Compare Gaius, 4 $ 116 :
Si stipulatus sim a te pecuniam, tanquam credendi causa numera-
turus, nec numeraverim . ... placet per exceptionem doli mali te
defendi debere, with Just. Inst. 4, 18, 2: Si quis, quasi credendi
causa, pecuniam stipulatus fuerit, neque numeraverit . .. . placet
per exceptionem pecuniae non numeratae te defendi debere.
Àn important peculiarity of these exceptions was that the burden
of proof was not, as in other exceptions, on the defendant, but on
the plaintiff,
m. $$ 110-127.] ADSTIPULATIO. 369
It is clear that when these rules were established the nature of
verbal and literal contracts was deeply modified: Formal con-
tracts were abolished, so far as the rules extended, or transformed
into real contracts, the obligation of the promisor depending on
the performance of the promisee (re), that is, on the execution by
the promisee of his part of the consideration, not on the solemnity
of the spoken words (verbis) or written document (literis).
This transformation of a verbal or literal into a real contract was,
however, confined to contracts contemplating & loan of money.
Moreover, by a constitution of Marcus Aurelius, if the stipulation
was accompanied by a written document, the exception could only
be pleaded within five years from the date of the contract, which
delay was reduced to two years by Justinian, Inst. 8, 21, after which
interval the cautio was accepted as incontrovertible proof that the
money had been advanced. After this interval, accordingly, Stipu-
lation, armed with a written document, resumed, or rather for the
first time assumed, its proper character of a Formal contract.
If no written document accompanied the Stipulation, no length
of time barred the defendant from pleading the exceptio Non
numeratae pecuniae.
If the plaintiff, instead of suing on the Stipulatio, sued on an
alleged loan (Mutuum), the defence of the defendant, though sub-
stantially the same, viz. that he had never received the money,
being a mere contradiction of the intentio, would not appear in the
formula in the shape of an exceptio. (For the circumstances under
which a defence took the form of Exceptio, see 4 § 115.)
But the usual practice was to associate a Loan with a Stipulatio,
and then the lender brought his action not on the Loan but on
the Stipulatio. Hence the question of the existence or non-exist-
ence of a Loan was usually litigated not in the form of an action
brought on a Loan, but in the form of an Exceptio non numeratae
pecuniae in an action brought on a Stipulation.
ADSTIPULATIO ET INTERCESSIO.
§ 110. Possumus tamen ad id § 110. Although another person
quod stipulamur, alium adhibere cannot stipulate for us, yet in our
qui idem stipuletur; quem uulgo stipulations we can associate with
alstipulatorem uocamus. ourselves another person who stipu-
lates for the same performance, and
is called an adstipulator.
$111. £t huic proinde actio con- $ 111. He can sue as well as the
Bb
370
petit proindeque ei recte soluitur
ac nobis; sed quidquid consecutus
erii, mandati iudicio nobis resti-
tuere cogetur.
$112. Ceterum potest etiam alzis
uerbis uti adstipulator quam quibus
nos usi sumus. itaque si uerbi
gratia ego ita stipulatus sim DARI
BPONDES!, ille sic adstipulari potest
IDEM FIDE TVA PROMITTIS? uel
IDEM FIDEIVBES? uel contra.
$113. Item minus adstipulari
potest, plus non potest. itaque si
ego sestertia X stipulatus s¢m, ille
sestertia V stipulari potest; contra
uero plus non potest. item si ego
pure stipulatus sim, ille sub con-
dicione stipulari potest; contra
uero non potest. non solum autem
in quantitate sed etiam in tempore
minus et plus intellegitur; plus est
enim statim aliquid dare, minus est
st tempus dare.
$ 114. In hoc autem iure quae-
dam singulari iure obseruantur.
nam adstipulatoris heres non habet
actionem. item seruus adstipu-
lando nihil agit, quamuis ex ceteris
omnibus causis stipulatione domino
adquirat. idem de eo qui in man-
cipio est, magis placuit; nam et
is serui loco est. is autem qui in
potestate patris est, agit aliquid,
sed parenti non adquirit, quamuis
ex omnibus ceteris causis stipulando
ei adquirat. ac ne ipsi quidem
aliter actio conpetit, quam si sine
capitis deminutione exierit de po-
testate parentis, ueluti morte eius
aut quod ipse flamen Dialis inau-
guratus est. eadem de filia familias
et quae in manu est dicta intelle-
gemus.
$ 115. Pro eo quoque qui pro-
mittit solent alà obligari; quorum
alios sponsores, alios fidepromis-
sores, alios fideiussores appellamus.
DE OBLIGATIONIBUS.
[ur. $$ 110—127.
stipulator, and payment to him dis-
charges the debtor as well as pay-
ment to the stipulator, but whatever
he recovers, the action of mandate:
compels him to hand over to the
stipulator.
§ 112. The adstipulator need not
employ the same terms as the sti-
pulator; if the one says, ‘ Art thou
sponsor for the conveyance?’ the
adstipulator may say, ‘ Dost thou
for the same pledge thy credit?’
or, ‘Dost thou for the same bid
me trust thee?’ or vice versa.
§ 113. He may contract for less
than the stipulator, but not for
more. Thus, if I stipulate for ten
sestertia he may stipulate for five,
or if I stipulate absolutely he may
stipulate conditionally, but not vice
versa. More and less 1s to be under-
stood of time as well as of quantity,
immediate payment being regarded
as more, and future payment as
less.
$ 114. In this institution there
are some exceptional rules. The
successor of the adstipulator cannot
sue; a slave cannot be adstipulator,
though in any other circumstance
his stipulation acquires a right for
his master; a person in domestic
bondage cannot be adstipulator, be-
cause he is likened to a slave; a son
in the power of his father can be
adstipulator, but does not acquire
a right for his father, as in all other
stipulations, and he himeelf has no
right of action until, without loss
of status, he ceases to be subject to
his father, by his father’s death, for
instance, or by being inaugurated
priest of Jupiter. The same is true
of a filiafamilias and a wife in the
power of her husband.
§ 115. For the promisor, simi-
larly, other persons are bound, who
are called sponsors or fidepromis-
sors or fidejussors.
r1. $$ 110-127.]
$ 116. Sponsor ita interrogatur
IDEM DARI SPONDES? fidepromissor
(ita) IDEM FIDEPROMITTIS? fide-
lassor ita IDEM FIDE TVA ESSE
IVBES? uidebimus [de his] autem,
quo nomine possint proprie appel-
lari qui ita interrogantur IDEM
DABIS] IDEM PROMITTIS? IDEM
FACIES 1
$ 117. Sponsores quidem et fide-
promissores et fideiussores saepe
solemus accipere, dum curamus ut
diligentius nobis cautum sit; ad-
stipulatorem uero fere tunc solum
adhibemus, cum ita stipulamur, ut
aliquid post mortem nostram detur.
(——) stipulando nihil agimus,
adhibetur adstipulator, ut is post
mortem nostram agat; qui si quid
fuerit consecutus, de restituendo eo
mandati iudicio heredi [meo] te-
netur.
$ 118. Sponsoris uero et fidepro-
missoris similis condicio (est),
fideiussoris ualde dissimilis.
$119. Nam ill quidem nullis
obligationibus accedere possunt nisi
uerborum, (quamuis interdum ipse
qui promiserit, non fuerit obligatus,
uelut si mulier aut pupillus sine
tutoris auctoritate aut quilibet post
mortem suam dari promiserit. at
illud quaeritur, $1 seruus aut pere-
grinus spoponderit, an pro eo spon-
eor aué fidepromissor obligetur).
$ 119a. Fideiussor uero omnibus
obligationibus, id est siue re siue
uerbis siue litteris siue consensu
contractae fuerint obligationes, adici
potest. ac ne illud quidem interest,
utrum ciuilis an naturalis obligatio
sit cui adiciatur ; adeo quidem, ut
pro seruo quoque obligetur, siue
INTERCESSIO. 371
$ 116. A sponsor is thus inter-'
rogated: ‘Art thou for the same
payment sponsor?’ a fidepromissor
thus: ‘ Dost thou forthe same pledge
thy credit?’ a fidejussor thus: * Dost:
thou the same guarantee?’ We
shall have to consider the question
what is the proper name for those
who are thus interrogated: ‘ Wilt
thou the same convey? Dost thou
the same promise? Wilt thou the
same perform 1'
$ 117. Sponsors and fidepromis-
sors are often employed for addi-
tional security; an adstipulator is
only employed to secure payment
after our death. Our own stipula-
tion for this is void, and therefore
we associate with ourselves an ad-
stipulator, who sues after our death,
and is compelled by an action of
mandate to hand over to our suc-
cessor whatever he recovers.
$118. The rules which govern
the sponsor and fidepromissor are
similar, and very unlike those which
govern the fidejussor.
$ 119. The former are adjuncts
of none but verbal contracts, and
are sometimes effective when the
principal promisor is not validly
bound, as, for instance, when a
woman or ward contracts without
the guardian’s authority, or a per-
s0n promises a payment after his
death. It is a moot question when
a slave or alien promises by the
term spondeo, whether his sponsor
or fidepromissor is effectively
bound.
§119a. A fidejussor may ac-
company any obligations, whether
real, verbal, literal, or consensual,
and whether civil or natural.
Accordingly, he may be bound for
the obligation of a slave either to
a stranger or to his master.
Bb 2
372
extraneus sit qui a seruo fideiusso-
rem accipiat, siue ipse dominus in
id quod sibi debeatur.
$120. Praeterea sponsoris et fide-
promissoris heres non tenetur, nisi
si de peregrino fidepromissore quae-
ramus, et alio iure ciuitas eius
utatur. fideiussoris autem etiam
heres tenetur.
$ 121. Item sponsor et fidepro-
missor lege Furia biennio liberan-
tur, et quofquoé erunt numero eo
tempore quo pecunia peti potest,
in tot partes deducitur inter eos
obligatio et singuli (iz) uiriles
partes obligantur. fideiussores uero
perpetuo tenentur, et quotquot erunt
numero, singuli in solidum | obligan-
tur. itaque liberum est creditori
a quo uei; solidum petere. sed
nunc ex epistula diui Hadrian: con-
pellitur creditor a singulis qui modo
soluendo sint, partes petere. eo
igitur distat haec epistula & lege
Furia, quod si quis ex sponsoribus
aut fidepromissoribus soluendo non
sit, hoc onus ad (ceteros mon per-
tinet ; sed ex fideiussoribus etsi unus
tantum soluendo sit, ad hunc onus)
ceterorum quoque pertinet.
$ 121a. Sed cum lex Furia tan-
tum in Italia locum habeat, euenit
ut in ceterts prouinciis sponsores
quoque et fidepromissores proinde
ac fideiussores perpetuo teneantur
et singuli in solidem obligentur,
nisi ex epistula diui Hadriani hi
quoque adiuuentwr in parte.
$ 122. Praeterea inter sponsores
et fidepromissores lex Appuleia
quandam societatem introduxit. nam
si quis horum plus sua portione
soluerit, de eo quod amplius de-
derit, aduersus ceteros actiones con-
stituit. quae lex ante legem Furiam
lata est, quo tempore in solidum
obligabantur. unde quaeritur an
DE OBLIGATIONIBUS.
[rrr. $$ 110-127.
§ 120. Again, no successor of the
sponsor or fidepromissor is bound,
except the successor of an alien fide-
promissor in whose municipality
such a rule prevails; but the fide-
jussor’s successor is always bound.
§ 121. Again, a sponsor and fide-
promissor, by the lex Furia, at the
end of two years are discharged of
obligation, and the total obligation
is divided into as many parts as
there are sponsors or fidepromissors
at the time when the payment is
due; and each is only liable for a
single part. Fidejussors are liable
for ever, and, however many there
are, each is liable for the whole
amount, and the creditor may sue
whichever he chooses for the whole.
But now by the letter of Hadrian
he is compellable to sue only for an
aliquot part, determined by the
number of the solvent. Herein the
letter of Hadrian differs from the
lex Furia, for the insolvency of one
sponsor or fidepromissor does not
increase the liability of the re-
mainder, whereas if only one of
several fidejussors is solvent, he has
to bear the whole burden.
$121a. As the lex Furia only
applies to Italy, in the provinces,
sponsors and fidepromissors, like
fidejussors, are liable for ever, and
each would be liable for the whole
amount, if they were not held to be
relieved to some extent by the letter
of Hadrian.
§ 122. Moreover, between spon-
sors and fidepromissors the lex Ap-
puleia introduced a sort of part-
nership, for any one of them who
has paid more than his share can
recover the excess from the others.
The lex Appuleia was passed before
the lex Furia, when each sponsor
and fidepromissor was liable for the
n. $$ 110-127.]
post legem Furiam adhuc legis Ap-
puleiae beneficium supersit. et uti-
que extra Italiam superest. nam
lex quidem Furia tantum in Ital:a
ualet, Appuleia uero etiam in cete-
ris prouinciis. sed an etium (in)
Italia beneficium legis Appuleiae
supersit, ualde quaeritur. ad _jfide-
tussores autem lex Appuleia non
pertinet. itaque si creditor ab uno
totum consecutus fuerit, huius 80-
lius detrimentum erit, scilicet si is
pro quo fideiussit, soluendo non sit.
sed ut ex supra dictis apparet, is
@ quo creditor totum petit, poterit
ex epistula diui Hadriani deside-
rare, ut pro parte in se detur actio.
$ 123. Praeterea lege Cicereia
cautum est, ut is qui sponsores aut
fidepromissores accipiat, praedicat
palam et declaret, et de qua re satis
accipiat et quot sponsores aut fide-
promissores in eam obligationem
accepturus sit ; et nisi praedixerit,
permittitur sponsoribus et fide-
promissoribus intra diem XXX prae-
iudicium postulare, quo quaeratur
an ex ea lege praedictum sit; et si
iudicatum fuerit praedictum non
esse, liberantur. qua lege fide-
iussorwm mentio nulla fit. sed in
usu est etiam si fideiussores accipi-
amus, praedicere.
$ 124. Sed beneficium legis Cor-
neliae omnibus commune est. qua
lege idem pro eodem apud eundem
eodem anno uetatur in amplio-
rem summam obligar creditae
pecuniae quam in XX milia. et
quamuis sponsores uel fidepro-
missores in ampliorem pecuniam,
ueluti si sestertium € milium (se
INTERCESSIO.
373
whole amount; and accordingly it
is questioned whether, since the lex
Furia was passed, they still enjoy
the benefit of the lex Appuleia.
In the provinces undoubtedly they
do; for the lex Furia is not in
force beyond Italy, and the lex
Appuleia is; but whether Italy
continues to be under its domin-
ion, is much disputed. Fide-
jussors are not governed by the
lex Appuleia; accordingly, if one
fidejussor pay the whole amount,
he alone suffers by the insolvency
of the principal; but it is his
own fault; for, as was said above,
a fidejussor sued for the whole
amount is entitled by the letter
of Hadrian to require the claim
to be reduced to his ratable
portion.
§ 123. Further, the lex Cicereia
provides that a creditor who obtains
the guaranty of sponsors and fide-
promissors shall previously an-
nounce and declare to them the
amount of the debt to be guaran-
teed and the number of sponsors
or fidepromissors by whom it is to
be guaranteed ; and in the absence
of such declaration the sponsors or
fidepromissors are permitted within
thirty days to demand a trial of
the issue, whether the requisite
declaration was made; and on
judgment that it was not made
are discharged of liability. The
law makes no mention of fide-
jussors, but it is usual in a
guaranty by fidejussors to make a
similar declaration.
§ 124. The benefit of the lex
Cornelia is available for all sureties,
forbidding the same person to be
surety for the same debtor to the
same creditor in the same year for
more than twenty thousand sester-
ces of ascertained debt; and if a
sponsor or fidepromissor guarantees
a larger sum, for instance, one hun-
374
obligauerint, tamen dumtaxat XX
tenentur). pecuniam autem credi-
tam dicimus non solum eam quam
credendi causa damus, sed omnein
quam tum cum contrahitur obli-
gatio, certum est debitum iri, id
est (quae) sine ulla condicione de-
ducitur in obligationem. itaque et
ea pecunia quam in diem certum
dari stipulamur, eodem numero est,
quia certum est eam debitum iri,
licet post tempus petatur. appella-
tione autem pecuniae omnes res in
ea lege significantur. itaque si
«inum uel frumentum aut si fun-
dum uel hominem stipulemur,
haec lex obseruanda est.
§ 125. Ex quibusdam tamen
causis permittit ea lex in infinitum
satis accipere, ueluti si dotis nomine,
uel eius quod ex testamento tibi
debeatur, aut iussu iudicis satis
accipiatur. et adhuc lege (Julia
de) uicesima hereditatium cauetur,
ut ad eas satisdationes quae ex ea
lege proponuntur, lex Cornelia non
pertineat.
$126. In eo quoque iure par
condicio est omnium, sponsorum,
fidepromissorum, fideiussorum, quod :
ita obligari non possunt, ut plus
debeant quam debet is pro quo
obligantur. atex diuerso ut minus
debeant, obligari possunt, sicut in
adstipulatoris persona diximus.
nam ut adstipulatoris ita et horum
obligatio accessio ,est principalis
obligationis, nec plus in accessione
esse potest quam in principali re.
$ 127. In eo quoque par omnium
causa est, quod si quid pro reo
soluerint, eius reciperandi causa
habent cum eo mandati iudicium,
et hoc amplius sponsores ex lege
Publilia propriam habent actionem
in duplum, quae appellatur depensi.
DE OBLIGATIONIBUS.
(xr. $$ 110-127.
dred thousand sesterces, he can only
be condemned in twenty thousand
sesterces. Ascertained debt includes,
besides & present loan, all money
which at the time of suretyship is
certain to be due, that is, which de-
pends on no eontingency. Aceord-
ingly,itineludes money stipulated to
be paid on a future day; for here the
creditor hasa vested right to a future
payment. Money in thislawincludes
everything, so that, if we stipulate
for the conveyance of wine, or corn,
or land, or a slave, the lex Cornelia
applies.
§ 125. In some circumstances,
however, the law permits a surety
to be bound for anindefinite amount,
as security for dower, for instance,
or for a legacy, or by judicial order.
Also the lex Julia imposing a daty
of one twentieth on testamentary
successions provides that the secu-
rities therein required shall be
excepted from the scope of the lex
Cornelia.
§ 126. The rights of sponsors,
fidepromissors, and fidejussors are
also equal in respect of the rule that
they cannot be bound for more
than their principal. They may,
however, be bound for less, just as
the adstipulator may stipulate for
less. For their obligation, like that
of the adstipulator, is an accessory
of the principal obligation, and the
accessory cannot be greater than
the principal.
§ 127. They further resemble in
this, that whoever pays for the
principal can recover the amount
from him by action of mandate,
Sponsors by the lex Publilia have an
additional remedy, being able, un-
less reimbursed in six months, to
recover twice the sum advanced by
the action on money paid by a
sponsor,
m. $$ 110-127.] CORREALITY. 375
$ 110. At the corresponding point of his Institutes (8, 16)
Justinian introduces the mention of CorREALITyY (duo rei debendi,
duo rei eredendi), and it may be expedient to examine the nature of
Correality before we embark on the consideration of the various
forms of Guaranty.
Correality, the multiplication of the creditors (plures rei credendi)
or debtors (plures rei debendi) in a single obligation without a
corresponding division of the Object of the right or obligation, was
an institution of Roman law in favour of creditors ; whereby, ex-
ceptionally and usually in virtue of a special agreement, each
ereditor was severally entitled to recover the whole (solidum)
object of the obligation from a common debtor, or each debtor was
severally liable to pay the whole object of the obligation to a
common creditor. "The ordinary rule, to which Correality forms an
exception, 1s that when there are many creditors or many debtors
in an obligation, the Object of the obligation is correspondingly
divided ; so that each creditor is only entitled to recover a pro-
portional fraction of the advantage and each debtor is only bound
to bear a proportional fraction of the burden. In Correality each
creditor is severally entitled to receive, and each debtor is severally
bound to discharge, the whole Object of the obligation. By the
ordinary rule, the creditors would be only jointly entitled to receive
the whole object; and this the debtors would be only jointly bound
to discharge; each creditor would be severally entitled to receive
only a ratable part of the Object of the obligation, and a ratable
part of the Object is all that each debtor would be severally bound
to discharge.
Correality may onginate in various modes :
(2) Contract, whether Formal or Formless, Dig. 45, 2, 9, in which
there are several promisors or several promisees. The usual origin
of Correality was Verbal contract or Stipulation.
(b) Testament: e.g. when a testator charges several successors
alternatively with the payment of a legacy.
(c) Co-ownership: e.g. when the co-proprietors of a slave are
liable for a noxal action for some mischief that he has com-
mitted.
(d) Potestas patria, or dominica, or Mandatum, when the su-
perior (father or master or principal) is liable to an actio adjectitiae
qualitatis (actio de peculio, de in rem verso, quod jussu, institoria,
exercitoria, 4 § 69) for the debt of the inferior (son, or slave, or
376 DE OBLIGATIONIBUS. [rm $$ 110-127.
agent). There is Correality between the inferior and superior, and
the creditor can elect which he will sue. The Correality of the
inferior and superior is here symbolized in the intentio or decla-
ration of the plaintiff, which is identical in form whether the suit is
brought against the inferior or the superior.
Correality not only as denoting total or integral liability on the
part of the debtor, and total or integral claim on the part of the
creditor, furnishes a contrast to partial or fractional (in partem, pro
rata) liability or claim ; but must also be distinguished from another
relation of co-debtors and co-creditors to which it is much more
nearly akin, namely SorrpARITY. Correality and Solidarity agree
in this, that in both of them every creditor is severally entitled to
receive the whole object of the active obligation, and every debtor
is bound to discharge the whole object of the passive obligation :
but differ in this, that whereas Correality implies the unity or
identity of the obligation by which the co-creditors are entitled or
the co-debtors are bound ; Solidarity implies that they are entitled
or bound by a plurality or diversity of obligations.
Solidarity originates in various modes :
(a) Common delict, when several co-delinquents incur a liability
to indemnification.
(6) Co-guardianship, when one of the co-guardians has injured
the ward from negligence.
(c) Contract in which there are several promisors but no pactum
adjectum to create Correality; e.g. where there are several
borrowers, hirers, agente, depositaries.
(d) Guaranty by the form of mandate called Mandatum qualifi-
eatum; or by the form of Constitutum called Constitutum debiti
alieni.
Both Correality and Solidarity, as implying an integral but
alternative obligation, lie in the mean between two extremes: on
the one side, divided or partial (pro rata) liability ; and on the other
side, the multiple or cumulative liability, generated by delicts that
give rise to bilaterally penal suits (4 $ 6). E.g. if several persons
combine to commit a theft they are all severally debtors for the
whole penalty, and payment by one does not discharge his fellows :
or if a person is guilty of an outrage (injuria) which wounds the
honour of several, they are all creditors for the penalty, and re-
eovery by one does not extinguish the claims of the rest, 8 $ 221.
Where the actions on delict are purely indemnificatory, or only
n1. $$ 110-127. ] SOLIDARITY. 377
unilaterally penal, as the actions brought on Metus, Dolus, Noxa,
Vis, there, as we have already stated, the relation of Solidarity
subsists between the co-delinquents, and satisfaction by one ex-
tinguishes the obligation of the rest.
The differences between Correality and Solidarity are principally
two:
I. In Correality the mght of action against the remaining co-
debtors or by the remaining co-creditors was extinguished by the
institution of a suit (litis contestatio) against or by one, whatever
the result of the suit: in Solidarity the right of action was only
extinguished by complete payment or satisfaction (solutio). Electo
reo principali fidejussor vel heres ejus liberatur: non idem in
mandatoribus observatur, Paulus 2, 17, 16, ‘Election to sue the
principal debtor discharges a Correal surety or his heir, but not a
solidary surety.'
It was possible to avoid the consumption or extinction of the
right of action against the surety that was operated by suing the
principal by so shaping the formula of fidejussio as not to produce
Correality, Dig. 45, 1, 116. But at a later period the whole
principle of process-consumption (extinction of right to sue by litis
contestatio) was tacitly abandoned: and Justinian expressly enacted
that in Correality as well as in Solidarity only actual satisfaction
of a claim should operate a consumption of the right of action.
Justinian’s ordinance is introduced into the Digest by means
of a bold interpolation: Cum utro velit Seius aget, ut, si cum
uno actum sit e£ solutum, alter liberetur. Pomponius, Dig. 80,
1, 8, 1.
2. A second difference between Correality and Solidarity consists
in the fact that in Solidarity the guarantor who pays the whole has
regressus against his co-guarantors, that is to say, has & power
of recovering from them contribution of their share of the debt:
whereas the Correal debtor who pays has no regressus or right to
contribution. (I have here followed Vangerow : Savigny attempts
to prove, but apparently without success, that regressus is an
incident of Correality.) Where, however, the Solidarity is the effect
of co-delinquency (No. a. above) the delinquent who pays has no
regressus.
After this preliminary consideration of the nature of Correality
we are in a position to examine the nature of Guaranty or Surety-
ship, and to fix the relation of fidejussio, one of the latest develop-
378 DE OBLIGATIONIBUS. [ur. $$ 1107127.
ments of Suretyship, to other cognate institutions of Roman
jurisprudence.
Fidejussio is a species of INTERCESSIO; and accordingly the above-
mentioned object requires us to examine the nature and subdivisions
of Intercessio.
Intercession is the assumption of liability for the debt of another
person by negotiation or contract with his creditor. For instance,
when a person is hesitating whether he shall accept a succession
because he has doubts whether it is solvent, that is, whether the
assets exceed the liabilities, to induce him to accept it by a promise
of indemnification, is not mtercession, because here there is no con-
tract with a creditor: but if the ground of his hesitation is a
suspicion that the debtors to the inheritance are insolvent, to induce
him to accept the inheritance by a promise to make good what he
fails to recover from the debtors is Intercession, for here is a contract
with a creditor.
' Intercession is either (A) Privative or.(B) Cumulative.
A. Privative Intercession is the substitution of one obligation
for another.
(1) Substitution for an actually pre-existent debt involves No-
VATION, i.e. the extinction of such preceding debt, and is called
Expromissio. Expromission, the discharge of a debtor by taking
his place in relation to the creditor, may be considered as including
Defensio, the defence of an absent debtor in a suit instituted by
the creditor; for then the volunteer defendant became liable to
condemnation in place of the original debtor: Suscipit enim in se
alienam obligationem, quippe quum ex hac re subeat condemna-
tionem, Dig. 16, 1, 2.
(2) Substitution, not for an .actually pre-existent obligation
which is novated, but for an obligation which would have to be
incurred by another person if the present obligation were not
assumed, is called INrERvENTIO. Si quum essem tecum contrac-
turus, mulier intervenerit ut cum ipsa potius eontraham, videtur
intercessisse, Dig. 16, 1, 8, 14.
B. Cumulative Intercession, or the addition of an obligation to
an obligation, is either Partial or Total, according as either part or
the whole of the object of the first obligation is the object of the
second or additional obligation.
(3) Of Partial intercessors we find an example within the limits
of Italy, in Sponsors and Fidepromissors under the operation of the
ri. $$ 110-127.] INTERCESSIO. 379
lex Furia. By this law the liability of each sponsor was in inverse
ratio to their number, § 121. Whether an Italian Sponsor who
had not availed himself of the limitation of his liability under the
lex Furia was entitled to Regressus under the older lex Appuleia,
was a matter of controversy, ibid.
Total Intercession is divided, according as several debtors are
bound by one single obligation or several distinct, though similar,
obligations, into two classes, Correality and Solidarity.
Correality is subdivided into two classes, according as all the
debtors are equally principals and originally interested, or some are
principal and others only subsidiary or accessory.
Correality in which all the debtors are interested as prineipals
has no specific name, but bears in.a distinetive meaning the generie
name of cORREALITY. As Intercession has been defined to be the
assumption of an alien debt (alena obligatio), this Correality is
not a species of Intercession.
(4) Correality in which one debtor is principal and others are
accessory is instanced in Fipesussio. There is not only Correality
between the principal and each Fidejussor but also between the
several Fidejussors. This is denied by Savigny, Law of Obligations,
$ 25, who asserts that though there is Correality between the
principal and each Fidejussor there is none between the several
Fidejussors : but Vangerow truly observes, § 578, that if the obli-
gation of each Fidejussor is identical with the obligation of the
principal it follows, by the fundamental axiom of syllogism, that
the obligations of the several Fidejussors are identieal with one
another: in other words, that there is Correality between the
several Fidejussors. Fidejussors have Beneficium divisionis by the
epistle of Hadrian, $ 121, Beneficium excussionis by Novella 4 of
Justinian, and emptio nominis or Beneficium cedendarum actionum.
If he neglected to avail himself of these, a Fidejussor, like other
correal debtors, had no regressus against his co-fidejussors, Dig.
46, 1, 89.
Correality is again instanced in the sponsors and Fidepromissors
of the provinces external to Italy under the operation of the lex
Appuleia. Unlike other correal debtors they had by this statute
Regressus by means of the action pro Socio, $ 122; though like
Fidejussors, they also had Beneficium divisionis under the con-
stitution of Hadrian, $ 121.
(5) Solidary Intereession is exemplifiedby the Mandator in the
380 DE OBLIGATIONIBUS. [rr §§ 110-127,.
contract called MANDATUM QUALIFIcaTUM. Here a lender gives
credit to a borrower in reliance on the representations of the
mandator, § 156, who thus is a guarantor of the borrower’s sol-
vency: when there are several such guarantors, their liability is
solidary.
(6) Other Solidary Intercessors, are the Constituentes in con-
STITUTUM DEBITI ALIENI. Both the Mandator and the Constituens
have Beneficium divisionis, Cod. 4, 18, 8, and Beneficium excussionis,
Novella 4.
§ 114. The peculiarity of the rules respecting the adstipulator
arise from the fact that he was & mandatary, agent, or trustee, the
repositary of a special personal confidence. Hence his rights did
not pass to his heres nor to his paterfamilias. Ordinary rules,
however, obtained so far, that he could not sue so long as he
remained a filiusfamilias, nor after his rights had been extinguished
by a capitis diminutio.
The principal funetion of the Adstipulator and one function of
the Adpromissor (the chief function of the latter of course was
suretyship) seems to have been processual agency, i.e. the repre-
sentation of the principal as plaintiff or defendant in a suit at a
period when the doctrine of Agency was still undeveloped.
We must suppose a time when the Cognitor and Procurator,
whose appointment as described, 4 § 88, was such a simple
matter, were institutions not yet invented: a period like that of
Statute-process (legis actio), concerning which we are told: Nemo
alieno nomine lege agere potest, Dig. 50, 17, 128, *only principals
could be parties to a suit ;’ and when, nevertheless, circumstances
often prevented a principal from litigating in person. In questions
of Property he might get over the difficulty and practically employ
an agent by fiduciary mancipation, Dig. 4, 7, 4, 3, of the property in
dispute to a third person, who would then litigate with the adver-
sary in the rights of his auctor, or the person from whom he
deduced his title. But in questions of Obligation this course was
not open, for Obligation was not thus transferable. Novation or
Delegation might effect the purpose, 2 § 38, 3 § 176: bat Dele-
gation required the concurrence of the debtor or adversary: and
Cession or Procuration, 2 § 89, we have assumed to be as yet un-
invented. At this period, then, the only remaining available
representative in a suit concerning contractual obligation was a
person who had been concerned, though merely as an accessory,
nr. $$ 110-127. ] INTERCESSIO. 381
§ 126, in the original convention. Ihering, § 56. When the deve-
lopment of the law of mandate led to the frequent appointment of
a procurator, the adstipulator ceased to be necessary except for
securing performance of an act after the death of the principal
promisee, § 117. He ceased to be necessary even for this purpose
when a stipulation for an act after the death of the stipulant was
decided to be valid, and accordingly the adstipulator has disappeared
from the legislation of Justinian.
§115. The adpromissor at different epochs of the law appears as
sponsor, fidepromissor, fidejussor. A sponsor could only intervene
when both parties were Roman citizens, a fidepromissor was used
when either party was a peregrinus, § 120. There is a striking
parallelism between the rules relating to a sponsor or fidepromissor
and those relating to an adstipulator. The obligation does not
pass to the heres, and the stipulation of the sponsor or fidepromissor
may be valid when that of the principal, though valid by Jus
gentium, is by Civil law invalid ; for instance, for a performance
after the death of the principal promisee. The sponsor and fide-
promissor can only be adjuncts to a stipulation, the fidejussor may
be employed to guaranty any obligation.
§ 121. The lex Furia discharging the sponsor and fidepromissor
of liability in two years and limiting the liability of each to a
proportionate part, is supposed to have been enacted s.c. 95.
The epistle of Hadrian (4.p. 117-188) left the fidejussor liable
originally (ipso jure) to the whole debt, with a counteractive right
(exceptio) to reduction, enforced by a clause in the formula, of which
the following passage appears to give the terms: Si contendat fide-
jussor caeteros solvendo esse, etiam exceptionem ei dandam : Si non
et illi solvendo sint, Dig. 46, 1, 28. ‘The contention of a fidejussor
that his co-fidejussors are solvent may be expressed in an exception :
Unless such and such co-guarantors are solvent. This privilege
of the fidejussor is called Beneficium divisionis.
$122. The lex Appuleia, which gave the sponsor or fidepromissor
the action pro socio, whereby he could recover by contribution from
his co-guarantors whatever he had paid in excess of his propor-
tionate share, was passed B.c. 102. It was the rule of the provinces
as the lex Furia was the rule of Italy.
$ 128. The name of this law was first discovered by Studemund.
Its date 18 not known, but as we gather from the text it was passed
at a time when fidejussors were not yet instituted.
382 DE OBLIGATIONIBUS. (xxx. $$ 110-127.
$ 124. The lex Cornelis, the first which mentions the fidejussor
as well as the sponsor and fidepromissor, limiting the amount for
which the same guarantor could be bound as security for a con-
tract either of mutuum or of stipulatio in the same year for the
same principal to the same guarantee, was passed in the dictator-
ship of Sylla, 5. c. 81, and seems to show that the stringency of
the lex Furia had led to a more frequent employment of the
fidejussor in place of the sponsor and fidepromissor. The
sponsor and fidepromissor have vanished from the legislation of
Justinian.
§ 125. The lex Julia vicesima or vicesimaria was a law of
Augustus, imposing, in support of the military treasury, a succes-
sion duty of one twentieth of the value on the testamentary
succession of all cives Romani.
$127. Thelex Publilia, which enabled a sponsor who had paid the
debt of his principal, unless reimbursed within six months, to recover
by actio depensi, a form of manus injectio pro judieato (4 § 22),
twice the amount of the original debt, is of uncertain date.
The right of a fidejussor to have a cession from the creditor
of his righte of action is called Beneficium cedendarum actionum.
If he neglected to avail himself of it and of hie Beneficium divisionis,
he had no Regressus against his co-sureties, Dig. 46, 1, 39.
A surety or guarantor of a debt may require the creditor to pro-
ceed against the principal first, provided he offer to indemnify him
in such proceedings, and to pay any deficiency in the sum which
he may recover. This is called Beneficium excussionis, and was
introduced by Justinian, Novella 4.
In Correality, as has been remarked above (p. 377), the right of
action against remaining co-debtors was extinguished by the institu-
tion of a suit against one (litis contestatio), whatever the result of the
suit, This power of litis contestatio to extinguish the creditor’s right
of action when there was a relation of Correality between a number
of debtors was doubtless a powerful motive towards substituting
for Fidejussio other forms of guaranty involving Solidarity instead
of Correality, and consequently free from process-consumption or
extinction of right of action by mere litis contestatio. Such forms
were Mandatum qualificatum ($$ 155—162 comm.) and Constitutum
debiti alieni, Ata later period process-consumption became obsolete
and in respect of Fidejussio was expressly abrogated by Justinian,
Cod. 8, 41, 28.
m1 §§ 128-134.] DE LITTERARUM OBLIGATIONE. 383
The general name of a stipulation by way of security for a debt
is cautio. If the debtor alone was bound, it was called nuda repro-
missio. If sureties were also bound, it was called satisdatio or
satisacceptio.
Before quitting the subject of suretyship we must observe a
peculiar feature of Roman law, the incapacity of women:to play the
part of guarantors. This was enacted by the senatusconsultum
Velleianum passed.in the reign of Claudius, a.p. 46.
Though the senatusconsultum seems to say that no action shall
be brought against a female guarantor, yet the frequent occurrence
of the phrase, exceptio senatusconsulti Velleiani, shows that an
action might be brought, but was barrable by an exception pleading
the senatusconsult.
The most noticeable rule of English law respecting the contract
of guaranty is that i& must be in writing. No action shall be
brought whereby to charge the defendant upon any special promise
to answer for the debt, default, or miscarriage of another person,
unless the agreement upon which such action shall be brought,
or some memorandum or note thereof, shall be in writing and
signed by the party to be charged therewith, or some other person
thereunto by him lawfully authorized, Statute of Frauds, 29
Charles IT.
DE LITTERARUM OBLIGATIONE,
$128. Litteris obligatio fit ueluti
nominibus transscripticiis. fit au-
tem nomen transscripticium duplici
modo, uel a re in personam uel a
persona in personam.
$129. (A re in personam trans)-
scriptio fit, ueluti si id quod tw ex
emptionis causa aut conductionis
aut socletatis mihi debeas, id ex-
pensum tibi tulero.
$130. À persona in personam
transscriptio fit, ueluti si id quod
mihi Titius debet, tibi id expensum
$ 128. Literal contracts, or obli-
gations created by writing, are ex-
emplified by transcriptive entries
of debit or credit in a journal.
Transcriptive entries are of two
kinds, either from thing to person
or from person to person.
$ 129. Transcription from thing
to person is exemplified when the
sum which you owe me on a con-
tract of sale or letting or partner-
Bhip is debited to you in my journal
as if you had received it as a
loan.
$ 130. Of transcription from
person to person we have an ex-
ample when the sum which Titius
384
tulero, id est si Titius te delegauerit
§ 131. Alia causa est eorum
nominum quae arcaria uocantur.
in his enim ret, non litterarum
obligatio consistit, quippe non aliter
ualent, quam si numerata sit pe-
cunia; numeratio autem pecuniae
re facit obligationem. qua de
causa recte dicemus arcaria nomina
nullam facere obligationem, sed
obligationis factae testimonium
praebere.
§ 132. Vnde (non) proprie di-
citur arcartis nominibus etiam pere-
grinos obligari, quia non ipso no-
mine, sed nwmeratione pecuniae
obligantur; quod genus obligationis
iuris gentium est.
$ 133. Transscripticiis uero no-
minibus an obligentur peregrini,
merito quaeritur, quia quodammodo
iuris ciuilis est talis obligatio ;
quod Neruae placuit. Sabino autem
et Cassio uisum est, si a re in per-
sonam fiat nomen transscripticium,
etiam peregrinos obligari; si uero
& persona in personam, non obli-
gari.
$ 134. Praeterea litterarum obli-
gatio fieri uidetur chirographis et
syngraphis, id est si quis debere se
aut daturum se scribat; ita scilicet
si eo nomine stipulatio non fiat.
quod genus obligationis proprium
peregrinorum est.
DE OBLIGATIONIBUS.
[rrr. $$ 128-134.
owes me is entered in my journal
as advanced to you, assuming that
you are indebted to Titius and that
Titius has substituted me for him-
self as your creditor.
$131. Transcriptive entriesdiffer
from mere entries of a person as
debtor to cash ; here the obligation
is not Literal but Real, for money
must have been actually paid, and
payment of money constitutes a Real
obligation. Consequently the entry
of a person as debtor to cash does
not constitute an obligation, but is
evidence of an obligation.
$ 132. Accordingly, it is not
correct to say that debits to cash
bind aliens as well as citizens, be-
cause it is not the entry in the
journal but the payment of money
that constitutes the contract, a
mode of obligation which is common
to all the world.
$ 133. Whether transcriptive
debits form & contract binding on
aliens has been doubted with some
reason, for this contract 1s an in-
stitution of civil law, as Nerva held.
Sabinus and Cassius, however, held
that transcription from thing to
person forms a contract binding on
an alien, though not transcription
from person to person.
$ 134. Another Literal obligation
is that created by chirographa and
syngraphae, or written acknowledg-
ments of debt or promises to pay,
unaccompanied by stipulation. This
mode of contract 1s proper to aliens.
One of the account books kept by the Romans, a nation of book-
keepers, was a waste or day book, called Adversaria, into which all
transactions were entered as they occurred. At the end of each
month the contents of the Adversaria were posted into the more
formal journal, the Tabulae, or Codex accepti et expensi.
Accord-
ing to Dionysius of Halicarnassus every Roman had to take an
oath once in five years before the Censors that his book-keeping
nr.$$128-134. DE LITTERARUM OBLIGATIONE. 885
was honest and accurate. On the subject of Roman book-keeping
and the literal contract, see I. M. Voigt, Abhandl. der K. Süchs.
Gesellschaft d. Wissenschaften, Bd. 10, 1887, p. 515, &c.
One species of Literal obligation, namely Expensilation, in the
nature of a novation or transformation of a pre-existing debt into
one of a stricter form, was effected by an entry in these domestic
registers, and from Cicero, Pro Roscio Comoedo, c. 5, we may infer
that the entry was binding even though it had not been transferred
from the Adversaria to the Codex. The creditor, apparently, with
the consent and by the order of the debtor, debited the latter with
a certain sum in the books of the creditor (expensilatio). After-
wards a corresponding entry was made by the debtor in the books
of the debtor (acceptilatio). The literal contract, however, appears
to have been complete without the latter entry.
Apparently, the true contract was the entry in the creditor's
book. The consent (jussus) of the debtor to this entry was neces-
sary, but not restricted to any particular form. The entry in the
debtor’s book was evidence, but not the only admissible evidence,
that he had assented to the entry in the creditor’s book.
Theophilus, in his Greek version of the Institutes, gives the
following account of the process: 7j 82 literis [évox}] écri rd waAasdy
xpéos els xawdp ddyetoy peracynpari(ópevov püpact xai ypáppact
Tumixots.... qv 0? rara TA phuara, Grwa kal éAéyero xal éypádero
rovs éxardy xpvaois, obs épol ef airlas picOdcews ypeworeis, od ex
cvrOkys kai duodoylas décets TOv olkelov ypappiárov ; etra éveypadero,
és and Tod évóxov Hon yevouévov ex rijs picOdcews, ravra rà pipara'
"Ex rs cuvOykns óe( rà» olxelwv ypagpáror. Kat 7j p£v mporépa
evox?) deo Bévvvro, kaworépa de érixrero, Theophilus, 8, 21. * A literal
obligation was an old debt transformed into a new loan by certain
solemn words and writings. 'The words which were spoken and
written in the register were as follows: ‘The hundred aurei which
you owe me on aecount of rent will you pay me on the convention
and acknowledgment of your own journal?” Then followed, as if
written by the person indebted for rent, these words: “I owe you
that sum by the admission of my own journal.” Whereby the
pre-existing obligation was extinguished and a new one created.’
[From the mention of ‘solemn words’ Theophilus is supposed to
have confounded Expensilatio, which was independent of spoken
words, with Stipulatio accompanied by a written record or CAUTIO. |
The account of Theophilus clearly only applies to one form of
cc
886 DE OBLIGATIONIBUS. (mm. $$ 128-134.
expensilation, the transcriptio a re in personam. The use of this
kind of transcriptio is obvious; it was a mode of converting Form-
less contracts into Formal contracts—equitable obligations into
civil obligations: of metamorphosing claims recoverable by actions
ex bona fide, e.g. conducti locati, empti venditi, which in many
points favoured the defendant, into debts recoverable by the short
and sharp remedy of the civil action of Condictio, which, when
brought for certa pecunia credita, was the more formidable to a dis-
honest litigant, as it was accompanied by sponsio poenalis, whereby
the vanquished party forfeited a third of the sum in litigation, in
addition, if he was the defendant, to the original claim, 4 § 171.
A narrative of Cicero shows the employment and possible mis-
employment of this transcriptio. He relates how a purchaser was
defrauded by a vendor, and in consequence of the form of contract
had no redress. Stomachari Canius. Sed quid faceret? Nondum
enim Aquilius collega et familiaris meus protulerat de dolo malo
formulas, De Off. 3, 14. ‘The purchaser was indignant, but he
was helpless, for my colleague Aquilius had not then invented the
action of Fraud.’ It may occur to us, on hearing the story, that as
the actio Empti was an action ex bona fide, that is, one in which
the judex was empowered to consider allegations of bad faith, the
defrauded purchaser would not have been without a remedy. But,
as Savigny points out, Cicero had guarded against this objection by
a certain feature which he gives to the narrative. Emit homo
cupidus et locuples tanti quanti Pythius voluit, et emit instructos.
Nomina facit, negotium conficit. ‘The purchaser was eager and
rich, he bought at the price the seller named, and he bought the
gardens ready furnished. The contract is by expensilatio; the
business is concluded.’ Nomen, which sometimes signifies any
debt, is here used, in a specific sense, for a debt created by Literal
contract; accordingly, nomina facit implies that the purchase, as
soon as concluded, had been novated, § 176, i.e. extinguished by
metamorphosis into a ledger debt; so that the transaction was
removed from the domain of equity to that of civil law, which in
its primitive simplicity had no provision for dolus malus.
Transcription a persona in personam was the substitution or
exchange of a debt owed by C to B, in discharge of a debt owed by
B to A; or, at all events, the substitution of C in lieu of B as
debtor to A. It is impossible to form an exact conception of the
mode in which these transcriptions were operated without a greater
m. §§ 128-134.] DE LITTERARUM OBLIGATIONE. 387
knowledge than we possess of the Roman method of book-keeping.
Nomen facere, as we have just stated, is to contract a debt by literal
obligation. Nomen signifies the name of the debtor, as in the line
of Horace: Scriptos nominibus certis expendere nummos; ‘ Re-
corded on his ledger to lend moneys to solvent borrowers.’ In the
business of bankers (argentarii), whose book-keeping of course was
extremely regular, the Literal contract appears to have survived
when it had fallen into desuetude in other quarters.
The word Transcriptitia may refer to the ¢ransfer involved in
Novation: Savigny however prefers the following origin of the
term. The Roman account-book (tabulae accepti et expensi), he
supposes, was essentially a Cash-book; a record of incomings and
outgoings of actual cash: i.e. the monthly or annual balance of
the debits and credits ought to correspond with and explain the
metallic contente of the cash-box or arca at the end of the month
or year. This correspondence or agreement would be destroyed by
the introduction of Fictitious loans (expensilatio) into the accounts,
unless every such entry to the credit of the cashier or chest was
neutralized and cancelled by a cross or opposite entry, of an equally
fictitious character, to the debit of the chest or cashier. But if
this device was adopted the balance of the book would coincide
with the actual contents of the chest; and the fictitious entries
would be called Transcriptitia because they were always double:
because each was always accompanied by its shadow across the
page. Verm. Schriften, 1, 205, &c.
In the time of Justinian both of the modes of Expensilatio, pro-
perly confined to Roman citizens, had become obsolete; as also
another form of Literal contract, the Syngrapha or Chirographum,
available where either of the parties was an alien. Syngrapha and
Chirographum, apparently, are synonymous, and signify any con-
tract in writing, such contract in Greece being always ground to
support an action, whatever its subject or form. In the Corpus
Juris the term Chirographum generally signifies a document which is
evidence of the existence or discharge of a debt, and the term Syn-
grapha occurs in the Greek Novellae of Justinian in the same sense,
The desuetude of Nomina transcriptitia was probably due to the
invention of coNsTITUTUM, a Consensual contract, which instead of
eonverting like Expensilatio an equitable obligation into an obli-
gation of jus strictum, superadded a civil obligation to a previous
obligation, whether equitable or civil [Ubi quis pro alio constituit
Cce2
388 DE OBLIGATIONIBUS. [rrr. $$ 128—134.
se soluturum, adhuc is pro quo constituit obligatus manet, Dig. 13,
5, 28]; and which with its excessively penal sponsio, 4 $ 171, gave
the creditor even a more effective remedy than the action on
Expensilatio (Condictio for pecunia certa credita).
Arearium nomen was the record, not of a fictitious loan, like
nomen transcripticium, but of the counting out of money from the
cash-box (arca), that is, of a genuine loan, and was, accordingly, a
memorandum of a Real obligation.
The coexistence of Nomina Arcaria with Nomina Transcriptitia
shows that entry in a Ledger did not operate a novation and con-
vert a debt into a ledger debt, unless such effect, was intended.
A stipulatio, unlike the entry in the journal or ledger, was not an
invariable accompaniment of an advance of money (mutui datio, an-
numeratio); and, when it was employed simultaneously with annum-
eratio, unlike expensilatio, it always constituted the sole contract :
there were not two contracts, a Real contract and a Verbal contract,
but onlya Verbal contract,and this without the intervention of Nova-
tion, Dig. 46, 2, 6, 1, and Dig. 46, 2, 7. Nam quoties, pecuniam mu-
tuam dantes, eandem stipulamur, non duae obligationes nascuntur sed
una verborum, Dig. 45, 126,2. ‘An advance accompanied by Stipu-
lation does not produce two contracts, but one, a Verbal contract.
Savigny’s doctrine that personal execution (incarceration) of a
judgment debtor (judicatus) was confined to actions brought on
loans of money (annumeratio) accounts satisfactorily for a debt
being sometimes left in its original form of a Real contract
(mutuum), sometimes being converted into a Verbal contract
(stipulatio), or Literal contract (expensilatio). When the interest
of the borrower prevailed, the contract would take the form of
stipulatio or expensilatio, with a milder remedy; when the interest
of the lender predominated, the contract would retain the form of
mutui datio, with its more stringent execution.
It may assist us in understanding the distinction of Formless and
Formal contracts, Verbal and Literal, if, before we quit this subject, we
cast a hasty glance at the corresponding institutions of English law.
, Inthe eye of the English law, contracts are either Simple (parol),
that is, enforceable only on proof of consideration, or Special, that
is, binding by the solemnity of their form. Special contracts are
either contracts under Seal or contracts of Record. A common
species of Deed, or written contract under seal, is the Bond or
Obligation, which, like Stipulatio, is used to secure the payment
nr §§ 135-138.] DE CONSENSU OBLIGATIONE. 389
of money or performance of any other act, and, like Stipulatio,
either binds the debtor alone or the debtor and sureties. It con-
sists of an obligatory part or penal clause, and a condition added,
that if the obligor does some particular act the obligation shall
be void, but else shall remain in full force.
Contracts of Record are either recognizances or Judgment debts.
A Recognizance is an acknowledgment before a court or magi-
strate that a man owes the Queen or a private plaintiff (as the case
may be) a certain sum of money, with a condition avoiding the
obligation to pay if he shall do some particular act, as, if he shall
appear at the assizes, keep the peace, pay a certain debt, or the like.
A Recognizance resembles Stipulation in its form, being entered
into by oral interrogation and answer, but differs in that it can
only be taken before a court or magistrate duly authorized, whereas
stipulatio was transacted between private parties.
A Judgment debt, or debt due by the judgment of a court of
record, is sometimes the result of a judgment in an adverse suit,
but sometimes it is merely a form of written contract, and may be
entered into in various ways. A fictitious action is brought, and
the party to be bound either makes no reply, or fails to instruct his
attorney, or confesses the action and suffers judgment to be at once
entered up; or the party to be bound consents to a judge's order
authorizing the plaintiff to enter up judgment and issue execution
against him, either at once and unconditionally, or on a future day
conditionally on non-payment of whatever amount may be agreed
upon; or the party to be bound gives a warrant of attorney, that
is, authority to an attorney to confess an action of debt or suffer
judgment to go by default, the warrant being accompanied by a
defeazance declaring it to be merely a security for payment of a
certain sum and interest, and providing that no execution shall
issue unless default in the payment shall have been made.
The conjunction of a penal clause and a condition avoiding it is
common to the judgment debt, recognizance, bond, and stipulation.
The Roman Nexum, as we have stated, had apparently the effect
of a Judgment debt.
DE CONSENSU OBLIGATIONE.
$ 135. Consensu fiunt obliga- $135. Consent creates a contract
tiones inemptionibusuenditionibus, in purchase and sale, letting and
locationibus conductionibus, socie- hiring, partnership, agency.
tatibus, mandatis,
390
$136. Ideo autem istis modis
consensu dicimus obligationes con-
trahi, quia neque uerborum | neque
scripturae ulla proprietas desidera-
twr, sed sufficit eos qui negotium
gerunt, consensisse. unde inter
absentes quoque talia negotia con-
trahuntur, ueluti per epistulam aut
per internuntium ; cum alioquin
uerborum obligatio inter absentes
fieri non possit.
$ 137. Item in his contractibus
alter alteri obligatur de eo quod
alterum alteri ex bono et aequo
praestare oportet; cum alioquin in
uerborum obligationibus alius sti-
puletur, alius promittat, et in no-
minibus alius expensum ferendo
obliget, alius obligetur.
$ 138. [Sed absenti expensum
ferri potest, etsi uerborum obligatio
cum absente contrahi non possit. |
DE OBLIGATIONIBUS.
[ur. $6 139—141.
$136. Inthese contracts consent
is said to create the obligation, be-
cause no form of words or of writing
(nor any delivery) is required, but
the consent of the parties is suffici-
ent. Absent parties, therefore, can
form these contracts; for instance,
by letter or messenger ; whereas in
Verbal contracts presence is neces-
sary.
§ 137. Further, these contracts
are bilateral, that is, both parties
incur a reciprocal obligation to per-
form whatever is fair and equal ;
whereas Verbal and Literal con-
tracts (and the Real contract of
mutuum) are unilateral, that is,
confer only a right on one party,
and impose only an obligation on
the other.
§ 138. Absence is no impediment
to Literal contracts, though it is to
Verbal.
Besides the four Consensual contracts which are named in the
text, certain praetorian and statutory conventions, though not
denominated contracts, were enforceable by action. An example of
praetorian pacts, or pacts enforced by the praetor, is constitutum or
constituta pecunia, which we mentioned when treating of stipula-
tion, as a form of consensual guaranty. An instance of statutory
pact, or pact made valid by statute, is donatio inter vivos. It was
irrevocable, and the donor could be forced by action to perform his
promise.
DE EMPTIONE ET VENDITIONE.
§ 139. Emptio et wenditio con-
trahitur, cum de pretio conwenerit,
quamuis nondum pretium nume-
ratum sit, ac ne arra quidem data
fuerit; nam quod arrae nomine
datur, argumentum est emptionis
et uenditionis contractae.
§ 140. Pretium autem certum
esse debet. nam alioquin si ita
inter nos conuenerit, ut quanti
Titius rem aestimauerit, tanti sit
$139. The contract of purchaseand
sale is complete so soon as the price
is agreed upon and before the price
or any earnest money'is paid. The
earnest money is merely evidence of
the completion of the contract.
§ 140. The price must be certain.
If there is an agreement to purchase
at a price to be fixed by Titius,
Labeo and Cassius say the contract
ut. §§ 139-141.] DE EMPTIONE ET VENDITIONE. 391
empta, Labeo negauit ullam uim
hoc negotium habere; cuius opini-
onem Cassius probat. Ofilius et
eam emptionem et uenditionem ;
cuius opinionem Proculus secutus
$141. Item pretium in nume-
rata pecunia consistere debet. nam
in ceteris rebus an pretium esse
possit, ueluti homo aut toga aut
fundus alterius rei (pretium esse
possit), ualde quaeritur. nostri
praeceptores putant etiam in alia
re posse consistere pretium. unde
ilud est quod uulgo putant per
permutationem rerum emptionem
et uenditionem contrahi, eamque
speciem emptionis uenditionisque
uetustissimam esse ; argumentoque
utuntur Graeco poeta Homero qui
aliqua parte sic ait :
("E»üe» dp’ olvi(ovro kapnkopócrres
"Axatot,
GÀXo« pev yarn, Dros 8 atbom odnpe,
dÀXox O6 favois, GAAot 8 adrjzor Bóeaow,
dÀXo« 3° avdparddecct. )
diuersae scholae auctores dissen-
tiunt aliudque esse existimant per-
mutationem rerum, aliud. emp-
tionem et uenditionem ; alioquin
non posse rem expediri permutatis
rebus, quae uideatur res uenisse,
et quae pretii nomine data esse,
sed rursus utramque rem uideri
et uenisse et utramque pretii no-
mine datam esse &bsurdum uideri.
sed ait Caelius Sabinus, si rem
tibi uenalem habenti, ueluti fun-
dum, [acceperim et] tretii nomine
hominem forte dederim, fundum
quidem uideri uenisse, hominem
autem pretii aomine datum esse,
ut fundus acciporetur.
is invalid, Ofilius and Proculus say
it is valid.
$ 141. The price should be in
money, for it is much disputed
whether anything but money, such
as a slave, a robe, a piece of land, can
be treated as price. My school hold
the affirmative, and regard exchange
as a species, and the oldest species,
of purchase and sale; in support
of which they quote the lines of
Homer:
‘Here touched Achaean barks in
quest of wine.
They purchased it with copper and
with steel,
With hides, with horned cattle, and
with slaves.’
The other school maintain the nega-
tive, and distinguish between ex-
change and purchase and sale, be-
cause in exchange we cannot deter-
mine which is the thing sold and
which is the price, and both things
cannot be regarded as both the
thing sold and the price. Caelius
Sabinus says that if Titius offers,
say, land for sale, and I give him a
slave for it, the thing sold is the
land and the price is the slave [be-
cause the preceding offer determines
which object is res and which is
pretium |.
It is necessary to distinguish clearly between the completion of a
contract of sale and the subsequent transmutation of property;
between the creation of a jus in personam and the creation of a jus
in rem; between the acquisition of au obligation and the acquisition
of ownership.
892 DE OBLIGATIONIBUS. (ax. $$ 139-141.
The contract is complete as soon as the price is agreed upon, but
no property passes until the price is paid and possession is de-
livered, or, in the case of & sale on credit, until possession is
delivered, Dig. 18, 1, 19. ‘Sale and delivery do not pass property
unless the price is paid, or security is given for the price, or credit
is given without security, Inst. 2, 1, 41. ‘Sale and delivery do
not pass property, unless the vendee pays the price, or gives the
vendor security; for instance, by a guarantor discharging the
vendee, or by mortgage. If, however, the sale is on credit, owner-
ship immediately passes.’
By English law, if the contract is for the sale of sPECIFIC goods,
ready for delivery, there is no distinction between the jus in personam
and the jus in rem; the contract is complete and the property
passes at one and the same moment.
If the sale is on credit, property passes immediately upon the
striking of the bargain or understanding as to terms, even before
delivery of the goods.
If the sale is for ready money, there must be a delivery or tender
of the whole of the goods or price, or delivery and acceptance of
part of the goods or price, before there is any contract, and at the
same moment the property is transmuted from the vendor to the
vendee.
If the contract is not for the purchase of specific goods, but of
goods of a certain nature or class, there arises a distinction between
property and obligation; for, though the contract is complete,
no property passes until the particular goods are ascertained by
delivery.
In the sale of land the equitable estate is conveyed by the contract
to convey, when perfected by the payment of the purchase-money,
and without notice to the party in whom the legal estate is vested :
the legal estate is only passed by the subsequent deed. Formerly the
deed was a Feoffment which was inoperative without livery of seisin,
that is, delivery of possession; but now the deed of Grant passes
property without delivery of possession. The assignment of an
equitable interest in personal estate is not perfect, as against an
assignee for valuable consideration, without notice to the trustee.
By the Code Napoleon delivery is requisite for the transfer of
property in movables, but property in immovables is transferred as
soon as the contract is complete.
By Roman law, the goods are at the risks of the purchaser as
m1. § 139-141.] DE EMPTIONE ET VENDITIONE. 393
soon as the contract is complete, and before the property is trans-
muted. The formula, res perit domino, therefore, does not apply to
the contract of purchase and sale, as it does to other contracts, e.g.
to mutuum commodatum, pignus.
In English law, the risk always belongs to the person in whom
the property resides, and the maxim, res perit domino, is applicable
to sales.
$ 139. Arrha, as a general rule, was evidence of the completion
of contract, but not always, at least in the time of Justinian. If
the parties so agreed, arrha was only a penal sum, whose forfeiture
entitled either negotiator to recede from a negotiation or rescind
a completed contract, Cod. 4, 21, 17. In the absence of such
special agreement, in default of voluntary performance, performance
could be enforced by action, and forfeiture of the arrha was cumu-
lative upon and additional to specific performance: the vendee, if he
was in default, could not reckon the arrha as part of the purchase-
money ; and the vendor, if in default, besides delivery of possession
and repayment of the arrha, was compelled to pay an equal sum to
the vendee.
In English law, the earnest is not an evidence of a contract, but,
Where it occurs, an essential part of the contract, which, therefore,
is not Consensual, but Real.
$ 140. Where the price is left to be fixed by an arbitrator,
Justinian enacted, in conformity with the opinion of Proculus, that
the contract is binding if the arbitrator makes his valuation.
§ 141. After the time of Gaius, a constitution of Diocletian and
Maximian (A.D. 286-305), conformably to the opinion of Proculus,
declares exchange or barter to be a Real contract, Cod. 4, 64, 3.
‘ An agreement to exchange without part execution cannot support
an action.’ Accordingly, we have mentioned it as belonging to the
miscellaneous class of contracts Real innominate.
The obligation of the vendor was not to transfer quiritarian
ownership (ut rem emptoris faciat), but merely to secure the vendee
in undisturbed enjoyment (ut praestet habere licere) of the article
sold, that is, to give him vacant possession and guarantee him
against eviction. Accordingly, if the vendee is judicially molested
in his possession, he summons his vendor to defend his title, and,
if evicted, recovers against his vendor the loss he has sustained.
Venditor si ejus rei quam vendiderit dominus non sit, pretio
accepto, auctoritati manebit obnoxius, Paul. Sent. rec. 2, 17, 1.
394 DE OBLIGATIONIBUS. [rrr. $$ 142-147.
* À vendor, not proprietor, on receipt of the purchase-money is liable
as warrantor.’ Auctoritas est actio pro evictione, Dig. 22, 2, 76.
* Auctoritas is an action on eviction against the vendor.’
A sale was often accompanied by stipulations binding the vendor
to repay twice the purchase-money in case of eviction, or in case
the article sold was returned for unsoundness (duplae stipulatio).
In the absence of express warranty the English law, applying the
rule of Caveat emptor, except in the sale for a fair price of goods in
the possession of the vendor, refuses to assume an implied warranty
or covenant of title, or, except in certain exceptional circumstances,
to assume an implied warranty of the goodness or soundness of the
articles sold. But by Roman law, in the absence of such stipula-
tions, warranty of the title and quality of the goods was held to be
inherent in the contract of sale. In the case of faults of quality
the purchaser could either recover part of the purchase-money by
actio aestimatoria, or rescind the contract by actio redhibitoria.
By English law mere inadequacy of price affords no ground for
setting aside a sale, unless it be so gross as to afford a necessary
presumption of fraud and imposition, and then a court of equity will
grant relief. By Roman law a vendor could rescind a contract for
the sale of land on proof that the purchase-money was only half the
value, Cod. 4, 44, 2.
Peculiar to the English law of sale is the provision of the Statute
of Frauds, that contracts for the sale of lands must be in writing
signed by the party to be charged: and contracts for the sale of
goods for the price of 10 and upwards are not good unless in
writing signed by the party to be charged, or unless the buyer
accept and receive part of the goods, or unless he give something in
part payment or in earnest to bind the bargain.
So far as delivery or payment is essential to the completion of
the contract of sale, it is clear that the contract is not Consensual,
but Real.
DE LOCATIONE ET CONDUCTIONE.
§ 142. Locatio autem et con-
ductio similibus regulis constitui-
tur; nist enim merces certa statuta
sit, non uidetur locatio et conductio
contrabi.
$143. Vnde & alieno atbitrio
merces permissa sit, uelut quamn£t
Titius aestimauerit, quaeritur an
$ 142. Letting and hiring are
governed by rules like those of
purchase and sale. Unless the sum
to be paid as hire is fixed, the con-
tract is not complete.
$ 143. And if the hire is to be
fixed by an arbitrator, for instance,
at the sum which Titius shall con-
mm. §§ 142-147.] DE LOCATIONE ET CONDUCTIONE.
locatio et conductio contrahatur.
qua de causa si fulloni polienda
curandaue, sfarcinatori sarcienda
uestimenta dederim, nulla statim
mercede constituta, postea tantum
daturus quanti inter nos conuenerit,
quaeritur an locatio et conductio
contrahatur.
$ 144. Ztem si rem tibi utendam
dederim et inuicem aliam rem
utendam acceperim, quaeritur an
locatio et conductio contrahatur.
$ 145. Adeo autem emptio et
uenditio et locatio et conductio
familiaritatem aliquam inter se
habere uidentur, ut in quibusdam
causis quaeri soleat, utrum emptio
et uenditio contrahatur an locatio
et conductio. ueluti si qua res in
perpetuum locata sit, quod euenit
in praediis municipum quae ea lege
locantur, ut quamdiu [id] uectigal
praestetur, neque ipsi conductori
neque heredi eius praedium awufer-
atur. sed magis placuit locationem
conductionemque esse.
$146. Item [quaeritur] si gla-
diatores ea lege tibi tradiderim,
ut in singulos qui integri exi-
erint, pro sudore denarti Xx mihi
darentur, in eos uero singulos qui
occisi aut debilitati fuerint, denariz
mille, quaeritur utrum emptio et
uenditio an locatio et conductio
contrahatur. et magis placuit
eorum qui integri exierint, loca-
tionem et conductionem contractam
uideri, at eorum qui occisi aut
debilitati sunt, emptionem et uen-
ditionem esse; idque ex acciden-
tibus apparet, tamquam sub condi-
cione facta cuiusque uenditione
an locatione. iam enim non dubi-
tatur quin sub condicione res ueniri
aut locari possint.
$147. Item quaeritur, si cum
surifice mihi conuenerit, ut is ex
auro suo certi ponderis certaeque
395
sider fair, it is & question whether
there is & contract of letting and
hiring. Accordingly, if I give
clothes to a fuller to clean or finish,
or to a tailor to mend, and the re-
muneration is not fixed at the time,
but left to our subsequent agree-
ment, it is a question whether there
is a contract of letting and hiring.
§ 144. The same question arises
if I lend a thing for use and receive
in retarn the loan for use of another
thing.
§ 145. Purchase and sale are 80
nearly akin to letting and hiring
that in some cases it is a question
under which category a contract
falls; for instance, when land is
leased in perpetuity as occurs with
the land of municipalities, which
is leased on the condition that, so
long as the rent is paid, the lessee
and his heirs shall continue in pos-
session. But here the better opinion
is that the contract is one of letting
and hiring.
§ 146. If a band of gladiators
are delivered on the following terms,
that is to say, that for the perform-
ance of every one who leaves the
arena safe and sound there shall be
paid twenty denarii, and for every
one who is killed or disabled there
shall be paid one thousand denarii,
it is disputed whether the contract
is one of purchase and sale or of
letting and hiring; but the better
opinion is that the unharmed were
let and hired, the killed or disabled
were bought and sold, the contracts
depending on contingent events, and
each gladiator being the subject of
a conditional hiring and a con-
ditional sale, for it 1s now certain
that both hiring and sale may be
conditional.
$ 147. Again, if & goldsmith
agrees to make me rings of a certain
weight and fashion out of his own
396
formae anulos mihi faceret, et acce-
pertt uerbi gratia denarios Cc,
utrum emptio et uenditio an loca-
tio et conductio contrahatur. Cas-
sius ait materiae quidem emptionem
uenditionemque contrabi, operarum
autem locationem et conductionem.
sed plerisque placuit emptionem
et uenditionem contrahi. atqui si
meum aurum ei dedero, mercede
pro opera constituta, conuenit loca-
DE OBLIGATIONIBUS.
(xm. $$ 142-147.
gold for, say, two hundred denarii,
it is a question whether the con-
tract is purchase and sale or letting
and hiring. Cassius says the ma-
terial is bought and sold, the labour
is let and hired, but most writers
hold that there is only a purchase
and sale. If I provide the gold and
agree to pay him for his work, the
contract is held to be a letting and
hiring.
tionem conductionem contrahi.
§ 143. Justinian decided that a hiring for a sum to be fixed by
an arbitrator was valid, like a sale on similar terms, if the arbi-
trator made his award; but that if the sum was left to the future
agreement of the parties, or, § 144, if the consideration was not
pecuniary but a reciprocal service, the convention was not a Con-
sensual one of letting and hiring, but a Real contract innominate,
deriving its validity from part execution, and to be enforced by the
action in factum praescriptis verbis, Inst. 3, 24, 1, 2.
§ 145. Where Gaius speaks of ager vectigalis, Justinian speaks
of ager emphyteuticus or emphyteuticarius, because in his days the
rules of these two kinds of tenure had been entirely assimilated.
Ager vectigalis was land leased by the Roman people, or a munici-
pality, or a sacerdotal college, or the Vestal Virgins, for various
terms of years, for a rent either in money or in produce, usually
amounting to one fifth or one seventh of the profits. Emphyteusis
was the grant of land in perpetuity, or for a term of years, for an
annual rent, subject to forfeiture, without claim for meliorations, on
non-payment of rent by the emphyteuta for three years, or for two
years if the land was held of the church. Land held in emphyteusis
was alienable, devisable, descendible by intestacy. The proprietor,
however, had a right of pre-emption, and a fine for admission of
a devisee or alienee of one fiftieth of the value, Cod. 4, 66, 4;
Novella, 120.
Emphyteusis resembled locatio in that the property remained in
the grantor ; it resembled venditio in that the grantee acquired not
only detention of the land granted, like the hirer (colonus), but also
possession, properly so called, and a proprietary right (jus in re, or,
servitude) that nearly amounted to property or dominion, and could
be maintained by actio vectigalis a real action against all the world,
including the nude or nominal proprietor.
nr.$$142-147.] DE LOCATIONE ET CONDUCTIONE. 397
Zeno (A. D. 475-491) decided that Emphyteusis was a contract
sui generis, distinct from both locatio and venditio, and requirmg
for its validity to be reduced to writing, Cod. 4, 66, Inst. 3, 24, 8.
Compare a similar provision of the English Statute of Frauds for
all contracts relating to land.
Like pignus, emphyteusis is a combination of jus in personam
and jus in rem, the one created by convention in writing, the other
by tradition.
§ 146. Gladiators were either (1) prisoners of war, ‘ butchered to
make a Roman holiday,’ or slaves who had committed some offence,
1 § 18, or criminals under a capital sentence; or (2) freemen who
voluntarily adopted the profession and hired themselves out (auc-
torati, 3 § 199) to persons who maintained troops or companies
(ludi familiae) of gladiators, either to make a profit, or to win the
favour of the public, by their exhibition. The first gladiatorial
show at Rome was exhibited B.c. 264. The passion of the populace
for these exhibitions in the palmy days of Rome amounted to a
mania; and a vast revolution in public sentiment was implied in
their suppression, A. D. 825, by the following constitution of Con-
stantine, Cod. 11, 48. ‘ Exhibitions of blood-shed are out of place
in the reign of law and the bosom of a fatherland; and gladiatorial
shows, therefore, are absolutely prohibited."
Locator denotes the person who furnishes land or a house or
other article to be used by another; conductor is the person who
takes the land or house (called colonus in the first case, inquilinus
in the second) or other article and pays a price.in money for its use. _
But in the case of opus faciendum, e.g. of a building to be con-
structed, or an article to be manufactured, the person who pays the
price, that is to say, the employer or orderer, is called locator ; the
person who performs the work or construction and receives the
price is called conductor. It may be worth inquiring how this
anomaly arose, and what led to this inversion of the meanings of
these correlative terms, and we shall find it in a certain incident
common to these and other conventions, and which has induced the
English law to regard them as composing a single class and to
denote them by a common denomination.
Deposit, loan for use, pawn or pledge, letting and hiring, and
mandate, are grouped together in English law under the head of
Bailments. ailment, derived from the French word bailler, ‘ to
deliver,’ is defined to be a delivery of a chattel (movable) in trust
398 DE OBLIGATIONIBUS. [urz. §§ 142-147.
for a specific purpose ; or, at greater length, a delivery of goods on
a condition that they shall be restored by the bailee to the bailor,
or according to his direction, as soon as the purpose for which they
were bailed shall be answered. 'These contracts, then, all imply
a delivery from the bailor to the bailee and a redelivery from the
bailee to the bailor or his order. Now in locatio-conductio operis
faciendi, there is usually a delivery and a redelivery : for instance,
goods are delivered to an innkeeper to be kept, or to a carner to be
transported, or materials are delivered to a manufacturer to be
fashioned, and. these goods and materials are to be redelivered at
another time, or in another place, or in an altered form. It is this
delivery and redelivery to which the Latin language always looks
exclusively in fixing on the persons to be denoted respectively by
the words locator and conductor; and, aecordingly, by locator it
denotes the bailor, and by conductor the bailee, without regarding
the fact that while in locatio-conductio rei or operarum the locator
supplies a service for which the conductor pays the price, in locatio-
conductio operis faciendi it is the locator who pays the price and
the conductor who performs the service.
Colonus, or the independent person who entered into a contract
of locatio-conductio respecting land, must be distinguished from the
colonus who mainly composed the agricultural population under the
empire. Colonatus, the condition of the latter colonus, is an insti-
tution whose origin is obscure, but which probably began to be
common as early as A.D. 200. Colonatus was not a mere obligation
or jus in personam, but a real right or jus in rem, and may be
regarded as a new form of dependent status, a condition of subjec-
tion to a superior, which may be classified with the status of familia
or domestic relations. It was a condition midway between freedom
and slavery. The colonus was liber and civis, but he was called by
the lawgiver servus terrae. He was mseparably bound to the soil:
a fugitive colonus, like a fugitive slave, was said to commit a theft
of his own body, and he could be recovered by real action (vindi-
catio) from any one who gave him harbour. He had property, but
it was called peculium, and, though he could not be deprived of it
like the slave, yet he could not aliene it without the consent of his
lord. With certain exceptions, he could not maintain an action
against his lord, who was called his patronus. Neither a colonus
nor his descendants could divest themselves of their hereditary serf-
dom. The colonus, having no Real right in the soil, paid no land
m. $$ 148-154.] DE SOCIETATE. 399
tax, but only a personal or capitation tax, like artisans and slaves.
As having an inherited condition, the colonus or inquilinus was
called originarius; as subject to the capitation tax he was called
tributarius, capite censitus, adscriptitius, censibus adscriptus. He
paid to his lord a certain annual rent (canon), usually in kind, and
always incapable of augmentation. This fixity of his rent was the
principal right which he enjoyed. See Savigny's Vermischte
Schriften, 15. If, seeking in Roman law for types of Feudal in-
stitutions, we find the germ of freehold tenure in Emphyteusis,
the antitype of copyhold tenure may similarly be discovered in
Colonatus.
DE SOCIETATE.
$ 148. Societatem coire solemus
aut totorum bonorum aut unius
alicuius negoti, ueluti mancipi-
orum emendorum aut uendend-
orum.
$ 149. Magna autem quaestio
fuit, an ita coiri possit societas,
ut quis maiorem partem lucretur,
minorem damni praestet, quod Q.
Mucius (contra naturam societatis
esse ezxistimcuM. sed Ser. Sulpicius,
cuius) etiam praeualuit sententia,
adeo ita coiri posse societatem exis-
timauit, ut dixerit ilo quoque
modo coiri posse, ut quis nihil
omnino damni praestet, sed lucri
partem capiat, si modo opera eius
tam pretiosa uideatur, ut aequum
sit eum cum hac pactione in socie-
tetem admitti. nam et ita posse
coir societatem constat, ut unus
pecuniam conferat, alter non con-
ferat, et tamen lucrum inter eos
commune sit; saepe enim opera
alicuius pro pecunia ualet,
$150. Et illud certum est, ai
de partibus lucri et damni nihil
inter eos conuenerit, [tamen | aequis
ex partibus commodum et incom-
modum inter eos commune esse.
sed si in altero partes expressae
$ 148. À partnership either ex-
tends to all the goods of the part-
ners or is confined to a single busi-
ness, for instance, the purchase and
pale of slaves.
$149. It has been much can-
vassed whether the law would re-
cognize a partnership formed on the
terms that a partner should have
a greater share in the profit than
he has in the loss. Quintus Mucius
thought such an arrangement con-
trary to the nature of partnership,
but Servius Sulpicius, whose opinion
has prevailed, held that such a part-
nership was so far from invalid that
a partnership might be formed on
the terms that a partner should
have a share in the gains and none
in the losses, if the value of his
services made such an arrangement
fair. It is certain that a partnership
may be formed on the terms that
one partner shall contribute all the
capital and that the gains shall be
divided equally, for a man’s services
may be equivalent to capital.
§ 150. If no agreement has been
made as to the division of the profit
and loss, it must be in equal shares.
If the shares are expressed in the
event of profit but not in the event
of loss, the loss must be divided
400
fuerint, uelut in lucro, in altero
uero omissae, in eo quoque quod
omissum est, similes partes erunt.
$ 151. Manet autem societas eo
usque, donec in eodem consensu
perseuerant. at cum aliquis renun-
tiauerit Societati, societas soluitur.
sed plane si quis in hoc renun-
tiauerit socletati, ut obueniens ali-
quod lucrum solus habeat, ueluti
si mihi totorum bonorum socius,
cum ab aliquo heres esset relictus,
in hoc renuntiauerit societati, ut
hereditatem solus lucri faciat, coge-
tur hoc lucrum communicare. i
quid uero aliud lucri fecerit quod
non captauerit, ad ipsum solum
pertinet. mihi uero quidquid om-
nino post renuntiatam societatem
adquiritur, soli conceditur.
$ 152. Soluitur adhuc societas
etiam morte socii, quia qui socie-
tatem contrahit, certam personam
sibi eligit.
$ 153. Dicitur etiam capitis de-
minutione solui societatem, quia
ciuili ratione capitis deminutio
morti coaequatur; sed utique si
adhuc consentiant in societatem,
noua widetur incipere societas.
$154. Item si cuius ex sociis
bona publice aut priuatim ueni-
erint, soluitur societas. sed haec
quoque societas de qua loquimur,
id est quae consensu contrahitur
nudo, iuris gentium est, itaque
inter omnes homines naturali ra-
tione consistit.
DE OBLIGATIONIBUS.
(1n. $$ 148-154.
in the same proportions as the
profit.
$ 151. Tbe continuance of part-
nership depends on the continuing
consent of the members: the renun-
ciation of one dissolves the partner-
ship. If, however, the object of a
partner in renouncing the partner-
ship is to monopolise some accruing
gain; if, for instance, a partner in
all goods succeeds to an inheritance
and renounces the partnership in
order to have exclusive possession
of the inheritance, he will be com-
pelled to divide this gain with his
partners; but what he gains un-
designedly he keeps to himself; and
his partner always has exclusive
benefit of whatever accrues to him
after the renunciation.
$ 152. Dissolution of partnership
ig also produced by the death of
& partner, for he who enters into
partnership elects & determinate
person with whom he is willing to
be partner.
$ 153. Loss of status also deter-
mines partnership, because in the
civil law loss of status is regarded
as equivalent to death ; but if the
members still consent to be partners,
8 new partnership commences.
$ 154. Again, the sale of all the
property of one of the partners,
whether by the state or by private
creditors, dissolves the partnership.
These remarks apply to private
partnership, which is formed by
mere consent, belongs to gentile
law, and being a contract of natural
law is within the capacity of all
men: {whereas societas publicano-
rum is not a consensual contract,
is confined to Roman citizens and
is governed by civil law. Cf. Stude-
mund. |
§ 148. In the absence of express convention a partnership is
limited to gains by commercial transactions (universorum quae ex
nr. $$ 155-162. ] DE MANDATO. 401
quaestu veniunt) and excludes gains by inheritance, devise, dona-
tion. A remarkable incident of unlimited partnership (universorum
bonorum) was the transmutation of property operated by mere con-
vention without delivery, Dig. 17, 2, 1, 1. *In partnership of all
goods, the property of all the members becomes forthwith common,
a constructive delivery being implied in the absence of actual
delivery? This rule was not applied to other forms of partnership.
§ 149. Although a partner might be exempt by the terms of the
eonvention from any share in the losses, yet a convention that a
partner should have no share in the gains was called a leonine con-
vention, and being devoid of consideration could not be enforced,
Dig. 17, 2; 29, 2. ‘Aristo records the decision of Cassius that a
partnership on the terms that one should take all the profite and
another bear all the loss, which he called a leonine partnership, is
not binding, and Ulpian concurs.’
$153. Of the three kinds of capitis minutio, maxima, media,
and minima, that is to say, loss of libertas, loss of civitas, loss of
domestic status, only capitis minutio maxima and media operate a
dissolution of partnership, Dig.17, 2; 65,11. * Partnership passes
neither to the heir nor to the adrogator of a partner, otherwise it
might be involuntary; but an independent person who becomes
dependent by adrogation, and a filiusfamilias who becomes inde-
pendent by enfranchisement, continue partners.’
§ 154. The forced sale of a person’s whole estate might be the
result of either a criminal or a civil proceeding, either condem-
nation for crime or insolvency, and in the latter case for the benefit
either of the State or of private creditors. Damnatione bona
publieantur cum aut vita adimitur aut civitas aut servilis conditio
irrogatur, Dig. 48, 20,1. ‘Condemnation forfeits all a criminals
goods to the treasury, if it deprives of life, or involves loss of civitas
(capitis minutio media), or loss of liberty (capitis minutio maxima)
Confiscation (publicatio) under it& ancient name of sectio bono-
rum, has already, 8 § 80, been mentioned. The quaestors of the
treasury were sent into possession; the sale, which was publicly
advertised (proseriptio), took place under the spear (sub hasta), the
symbol of absolute dominion, and vested in the purchaser (sector)
quiritarian ownership.
DE MANDATO.
$155. Mandatum consistit, siue $155. Agency may contemplate
nostra gratia mandemus siue aliena. the benefit either of the principal or
pd
402
itaque siue ut mea negotia geras,
giue ut alterius, mandauerim, con-
irahitur mandati obligatio, et in-
uicem alter alteri tenebimur in id,
quod uel me tibi uel te mihi bona
fide praestare oportet.
$156. Nam si tua gratia tibi
mandem, superuacuum est manda-
tum; quod enim tu tua gratia fac-
turus sis, jd de tua sententia, non
ex meo mandatu facere debes, ita-
que si otiosam pecuniam domi te
habentem hortatus fuerim, ut eam
faenerares, quamuis eam ei mutuam
dederis a quo seruare non potueris,
non tamen habebis mecum mandat
actionem. item si hortatus sim, wé
rem aliquam emeres, quamwis non
expedierit tibi eam emisse, non ta-
men tibi mandati tenebor. et adeo
haec ita sunt, ut quaeratur an
mandati teneatur qui mandauit
tibi, ut Titio pecuniam faenerares.
[sed] Seruius negauit; nec magis
hoc casu obligationem consistere
putauit, quam si generaliter alicui
mandetur, uti pecuniam suam fae-
neraret. (sed) sequimur Sabini
opinionem contra sentientis, quia
non aliter Titio credidisses, quam
si tibi mandatum esset.
$157. Illud constat, si quis de
ea re mandet quae contra bonos
mores est, non contrahi obliga-
tionem; ueluti si tibi mandem, ut
Titio furtum aut iniuriam facias.
$ 158. Item si quid post mortem
meam faciendum (mihi) mandetur,
inutile mandatum est, quia gener-
aliter placuit ab heredis persona
obligationem incipere non posse.
$ 159. Sed recte quoque con-
summatum mandatum si, dum ad-
huc integra res sit, reuocatum
fuerit, euanescit.
§ 160. Item si adhuc integro
mandato mors alterutrius alicuius
interueniat, id est uel eius qui
DE OBLIGATIONIBUS.
[ur. $$ 155-162.
of a stranger; that is to say, your
undertaking at my request to trans-
act my business or the business of
& third person will create an obli-
gation between us, and make us
mutually liable to satisfy the de-
mands of good faith.
§ 156. But if I recommend you
to perform anything for your own
exclusive advantage, there 1s no re-
lation of agency, for you ought to
act on your own judgment and not
by my commission. If you tell me
that you have money lying in your
cash-box, and, on my advice to lend
it at interest, you lend it to a per-
son from whom you cannot recover
it, you will have no action of man-
date against me: or if I recommend
you to buy, and you lose by buy-
ing, I am not liable to be sued in
action of mandate. So settled is this,
that it has been questioned, whether
mandate can be brought on a specific
recommendation to lend to Titius;
Servius holds that no obligation
arises in this case any more than
in that of a general recommenda-
tion to lend money, but we adopt
the opposite opinion of Sabinus, on
the ground that the money would
not have been lent to Titius, if there
had been no recommendation.
$ 157. It is clear that an insti-
gation to do an unlawful act, to
steal, for instance, or commit an
assault, gives the agent no right of
action against the instigator.
$ 158. A commission to be exe-
cuted after the death of the agent
is invalid by the general rule that
8 successor cannot be the original
subject of an obligation.
$159. A valid authority is an-
nulled by revocation before a com-
mencement of execution.
$160. So the death of either the
principal or the agent before a com-
mencement of execution is a revo-
m. $$ 165-162. ]
mandawerit uel eius gui mandatum
susceperit, soluitur mandatum. sed
utilitatis causa receptum est, ut si
mortuo eo qui mihi mandauerit,
ignorans eum decessisse executus
fuero mandatum, posse me agere
mandati aotione; alioquin iusta et
probabilis ignorantia damnum mihi
adferret. et huic simile est quod
plerisque placuit, si debitor meus
manumisso dispensatori meo per
ignorantiam soluerit, liberari eum,
cum alioquin stricta iuris ratione
non posset liberari eo quod alti
soluisset quam cui soluere deberet.
$ 161. Cum autem is cui recte
mandauerim, egressus fuerit man-
datum, ego quidem eatenus cum eo
habeo mandati actionem, quatenus
mea interest inplesse eum manda-
tum, si modo inplere potuerit; at
ille mecum agere non potest. ita-
que si mandauerim tibi, ut uerbi
gratia fundum mihi sestertiis ¢
emeres, tu sestertiis CL emeris, non
habebis mecum mandati actionem,
etiamsi tanti uelis mihi dare fun-
dum, quanti emendum tibi man-
dassem ; idque maxime Sabino et
Cassio placuit. quodsi minoris
emeris, habebis mecum scilicet ac-
tionem, quia qui mandat, ut C mi-
libus emeretur, is utique mandare
intellegitur, uti minoris, si posset,
emeretur.
§ 162. In summa sciendum (est,
quotiens) aliquid gratis ( facten-
dum) dederim, quo nomine si mer-
cedem statuissem, locatio et con-
ductio contraheretur, mandati esse
actionem ; ueluti si fulloni polienda
curandaue uestimenta (dederim)
aut sarcinatori sarcienda.
DE MANDATO,
403
cation of a power: but equity re-
quires that, if after the death of a
principal and without having notice
of his decease an agent execute his
commission, he may recover against
the successor of the principal in an
action of mandate; for otherwise
an unavoidable ignorance would be
visited by a legal penalty. Similar
to this is the rule which is sup-
ported by the weight of authority,
that a debtor who pays a manu-
mitted steward without notice of
his manumission is discharged of
liability; though by the strict letter
of the law he is not discharged, be-
cause he has not paid the person
whom he was bound to pay.
§ 161. If an agent deviates from
his instructions, he may be sued for
the amount which his principal loses
by the non-execution of the instruc-
tions, if the execution was possible;
and he will have no right of action
against the principal. So if I com-
mission you to purchase an estate
for, say, a hundred thousand ses-
terces, and you purchase for a hun-
dred and fifty thousand, you will
have no action of mandate against
me although you are willing to
convey to me for the price at which
I authorized you to buy: so Sabinus
and Cassius have decided. If you
buy it for less, you will have a right
of action against me, for a direction
to buy for a hundred thousand ses-
terces is regarded as an implied
direction to buy, if possible, for any
smaller sum.
§ 162. Finally, the delivery of
material to be wrought or fashioned
gratuitously, where if a remunera-
tion had been fixed there would
have been a letting and hiring, is
ground for an action of mandate
against the bailee; the fuller, for
instance, who receives clothes to be
cleaned or bleached, or the tailor
who receives them to be mended,
pd2
404 DE OBLIGATIONIBUS. [1rr. $$ 155—162.
In the contract of agency (mandatum) the principal is called
dominus or mandator, the agent procurator or mandatary.
We have already mentioned, when treating of the verbal con-
tract of stipulation, that a guaranty was often given by the con-
sensual contract of mandate, 8 §§ 110, 127, comm. Such a man-
date is called MANDATUM QUALIFICATUM, or Mandatum Credendi.
We have the principle explained in $ 156: he who recommends a
third person as of good credit is bound to make good his representa-
tion and to indemnify another who sustains damage from giving
eredit on the faith of that representation. So by English law a
person not interested in a transaction who makes a false and
fraudulent misrepresentation which induces another to trust and
contract with a third person is answerable for the loss occasioned
by his misrepresentation.
As such a representation was in effect a guaranty, and to allow
an action on a verbal misrepresentation would avoid the Statute of
Frauds, which requires a guaranty to be reduced to writing, Lord
Tenterden’s Act, 9 George IV, chapter 14, enacted that no action
shall be brought whereby to charge any person upon any repre-
sentation or assurance concerning the character, credit, or ability
of any other person, to the intent that such other person may
obtain money or goods upon credit, unless such representation or
assurance be made in writing, signed by the party to be charged
therewith.
Another case in which a guarantor and guarantee stand in the
relation of mandant and mandatary is DELEGATIO. Tua et mandantis
gratia intervenit mandatum, si mandet tibi, ut ipsius periculo
stipuleris ab eo quem tibi deleget in id quod tibi debuerat, Inst. 3,
26,2. ‘ Both the agent and the principal are beneficially interested
in a mandate if the principal directs the agent at the risk of the
principal to take a verbal bond from a debtor of the principal in
discharge of a debt due from the principal to the agent.’ Gaius,
2 § 38, ‘The transfer of a debt requires that on the order of
the transferror the transferree should stipulate payment from the
debtor, whereupon the debtor is discharged of liability to the trans-
ferror and becomes bound to the transferree, which change is called
NOVATION.”
The relations that may subsist between the three parties to a
Delegatio (Delegans or the Delegator, Delegatus, and Creditor or
the Delegatee), are very varied :
im. $$ 155-162.] DE MANDATO. 405
(1) The Delegans may have towards the Delegatee solvendi
animus, credendi animus, or donandi animus.
a. When the Delegator is indebted to the Delegatee and has
solvendi animus, Delegatus is expromissor of Delegans,
and the debt of Delegans is novated. Solvit et qui reum
delegat, Dig. 16, 1, 8, 8.
6. But Delegator may have contrahendi animus: and then
there is no debt of Delegator to be novated, and Delegatus
is not Expromissor. Si me... mutuam pecuniam roga-
veris, et ego meum debitorem tibi promittere jusserim . . .
Dig. 12, 32.
c. Or Delegator may have donandi animus: then again there
is no debt of Delegator to be novated, and Delegatus is
not Expromissor. Si debitorem meum tibi donationis
causa promittere jussi . . . Dig. 29, 5, 21, 1.
(2) a. In the same way Delegatus may either be indebted to
Delegator and have solvendi animus, as is assumed in
some of the texts above quoted :
b. or he may have credendi animus, Cod. 8, 42, 5:
c. or he may have donandi animus : Ut mihi donares, credi-
tori meo, delegante me, promisisti, Dig. 89, 5, 21.
If both Delegans was indebted to the Delegatee and Delegatus
to Delegans, there are two novations: if only one was indebted
there is one novation, if neither was indebted, the Delegation in-
volves no novation. Assignatio is another use of Mandate.
In Assignatio Assignans orders Assignatus not, as in Delegatio, to
promise but to pay a sum to the Assignatee. The relations between
the parties to an Assignatio are as various as those we have indi-
cated between the parties to a Delegatio. Until payment, Assignans
has a power of revoking the order, and Assignatus may disobey the
order: hence the maxim: Assignation is not payment. But when
payment is once made it has an extinctive effect like that of simple
solutio. Baron, Pandekten, § 307.
Dig. 46, 2, 11, pr., seems to contemplate a double delegation :
ie. a proceeding in which the ultimate promisee is not the person
whom we have called Delegatarius or Delegatee but a fourth per-
son, Delegatarius of Delegatarius primus, to whom Delegatarius
primus may have the intention solvendi or credendi or donandi.
If Delegatarius primus is indebted to this fourth person, this
debt will be novated: so that if Delegatus was indebted to
406 DE OBLIGATIONIBUS. [u1. $$ 155-162.
Delegator and Delegator to Delegatarius primus, there are three
novations,
Similarly Assignatio may be double: the ultimate payee may be
a fourth person, Ássignatarius of Assignatarius primus, a creditor,
borrower, or donee of the first Ássignatarius; if he is not, as in the
following example, a mere hand or instrument (son, slave, or agent)
by whom the first Assignatarius receives payment.
We know that Cicero pater supplied Cicero filius when a student
at Athens with money by the mediation of his friend Atticus who,
as publican, had debtors in Greece. The procedure would be as follows:
Atticus (A, assignator) at the request of Cicero pater (C, assig-
natarius primus), orders Graeculus (B, assignatus) to pay to Cicero
filius (D, assignatarius secundus) what Atticus owes to Cicero pater.
The payment by Graeculus to Assignatarius secundus, D, discharges
the debt of Graeculus to Atticus, the debt of Atticus to Cicero
pater, and if D were an independent person, creditor of Cicero pater,
the debt of Cicero pater to D.
Mandate might be employed to operate a virtual transfer of
obligation, without Delegation or Novation, which, besides extin-
guishing the securities of the prior obligation, was not always
practicable as it required the concurrence of the debtor, by czssto
ACTIONUM, or Mandatum Agendi—the mere transfer of the nght of
action (mandare, cedere, praestare actiones). The transferror made
the transferree his processual representative and that on the trans-
ferree’s own account (procurator in rem suam): that is, gave him
@ procuration or power of attorney, which enabled him to sue either
entirely in the name of the transferror, or, employing the formula
Rutiliana, partly in the name of the transferror and partly in the
name of the transferree, naming the transferror in the intentio and
the transferree in the condemnatio, 4 § 35: and in either case
entitled him to retain whatever sum he recovered, 2, 38. In
Cessio the three parties are called Cedens, Cessus, Cessionarius.
After certioratio, or denuntiatio, to Cessus, Cedens was incapable
of further Cessio, Novatio, Acceptilatio, Solutio. Kuntze, § 606.
In the later period of the law the transferree of an obligation
might even sue in his own name on the Cautio of a debtor by an
actio utilis, i.e. a fictitious action feigning that the plaintiff is
heres of the creditor (formula Serviana) or, more probably, without
any fiction by formula in factum concepta. Vangerow, § 574.
Here we may seem to have in full bloom the institution of nego-
m. $$ 155-162.] DE MANDATO. - 407
tiable paper, that is, written promises to pay, transferable from
person to person, and giving the transferree a right to sue in his
own name.
In the Roman practice, however, we are far from a complete
system of transferable obligation. The ceded or assigned obliga-
tion was never completely detached from the person and liabilities
of the preceding creditor. The cessionary or assignee was open to
all the exceptions that might have been opposed to the original
creditor: e.g. to compensatio, or reduction by the amount of a
counterclaim ; to exceptio non numeratae pecuniae, or plea of want
of consideration : and to exceptio of lex Anastasiana, a statute which
prohibited any vendee of a debt from recovering, out of its nominal
amount, more than the price at which it was actually purchased.
And similar objections might be raised in respect of any creditor
intermediate between the original assignor and the final assignee.
The complete transferability [singular succession] of obligations was
unknown to jurisprudence until modern legislation gave validity to
contracts with an incerta persona, i.e. with a person unascertained
except as member of a class; in other words, to papers payable to
the Holder or Bearer, 2 § 259, comm.
In such papers, which are subjects of property or ownership, the
incorporeal obligation is, as it were, incorporated, and Obligation
is transformed into Dominion. We have instances of such papers
(called negotiable) in Promissory Notes, Bills of Exchange, State
obligations (documents expressing a claim against a government
for a certain amount of capital debt, and having annexed to them
coupons, representing claims of periodic interest), and Debentures
of industrial corporations (certificates of Shares in such industrial
companies, though similar to Debentures as entitling the Holder
to certain dividends or shares in the profits, are foreign to our
present purpose, because they essentially and originally relate to
Property or jus in rem, not to Obligation or jus in personam, the
Shareholders being co-proprietors). By the use of such negotiable
papers the transferability of Obligation is raised to a level with the
transferability of Dominion, Savigny, Obligationenrecht, 62—70.
$161. The doctrine of Sabinus that if an agent exceed his
powers in the price at which he purchases, the principal is not
bound for the purchase money even after deduction of the un-
authorized excess, was overruled, as we are informed by Jus-
finian. Inst. 3, 26, 8.
408 DE OBLIGATIONIBUS. [rr. §§ 155-162.
6162. It is only in exceptional cireumstances, such as those
here mentioned, that the contract of mandatum can fall under the
head of Bailment.
The gratuitous character of mandatum is rather nominal than
real. The professor of a liberal art could recover a remuneration
which, however, was disguised under the name of salarium or
honorarium, and could not be sued for by action of mandate before
an ordinary judge, but was a matter for the extraordinary cogni-
zance of the praetor or chief minister of justice. Adversus eum
cujus negotia gesta sunt, de pecunia quam de propriis opibus vel ab
aliis mutuo acceptam erogasti, mandati actione pro sorte et usuris
potes experiri. De salario autem quod promisit, apud praesidem
provinciae cognitio praebebitur, Cod. 4, 25, 1. ‘The employer
whose business you transacted, as to the moneys out of your own
pocket or taken up at a loan which you spent for his use, may be
forced by action of mandate to reimburse you the principal and
interest. The salary which he promised must abide the decision
of the president of the province) Under the liberal professions are
included advocates, physicians, oculists, aurists, dentists, copyists
(librarii) short-hand writers (notarii) accountants, schoolmasters,
nurses, rhetoricians, grammarians, geometers, land surveyors. The
professors of philosophy and of civil law may receive fees volun-
tarily offered, but their functions are so exalted that it would be
unseemly in them to ask for à pecuniary remuneration even at the
tribunal of the praetor, Dig. 50, 18, 1.
The law of agency or representation was only slowly developed
in Roman jurisprudence, see 2 $ 95, comm. Originally the cases in
which a contractor could bind a principal to his contractee or the
contractee to a principal were confined to contracts by persons
under power, that is to say, sons or slaves.
The right acquired by a son or slave was acquired for the father
or master, 1 § 163, and if the contract was made by the order or
for the use of the father or master, he was suable by the contractee,
4 §§ 70-74. But in other cases the benefit or burden of a contract
was confined to the parties contracting. The procurator or agent
contracted with a third party in his own name: the third party
recovered his dues from the agent by an action on the contract:
and the agent would in turn recover his from the principal by an
action on the mandate. There was no immediate relation between
the third party and the principal, and any action in which the third
m. $$ 155-162.] QUASI INSTITORIA. 409
party sued the prineipal or vice versa, could have only resulted
from CESSIO ACTIONUM, i.e. a transfer of obligations between the
agent and principal, or the agent and the contractee.
However, in process of time the law recognized the appointment
of a cognitor or representative of a party to a suit, and such
cognitor was to all intents and purposes identified with his
principal, 4 $ 88.
Furthermore, the manager of a shop (institor), and captain of a
ship were enabled by praetorian legislation to bind the employer
and shipowner (exercitor) to third parties by means of the actions
institoria and exercitoria, 4 § 71. This was gradually extended so
as to allow to all persons who contracted with an agent a right of
action, called quasi institoria, against his employer.
The praetors went even beyond the precedent furnished by insti-
tona, and allowed to principals a converse or obverse immediate
right of action against third parties who had contracted with
agents. Quod procurator ex re domini, mandato non refragante,
stipulatur, invito procuratore dominus petere potest, Dig. 8, 3, 68.
* When an agent, dealing with the interests of his principal and in
accordance with his instructions, makes a contract, the consent
of the agent is not required to entitle the principal to sue^ When
the praetors, proceeding by timid and hesitating steps, had reached
this point, the Roman law of agency had become identical with
the system we find established in modern Europe. Under this
system it is a general rule, that when an agent is duly constituted
and discloses the name of his principal, so as to enable the party
with whom he deals to have recourse to the principal, and contracts
in his name and on his behalf, and does not exceed his authority,
the principal is responsible and not the agent. The only reservation
to be made is the following : In contracts governed by Jus gentium
the relation of Agency was recognized in its fullest development :
in Formal contracts, or contracts governed by the Civil law (of
which in the last period of Roman Jurisprudence the only surviving
instance was Stipulatio), the primitive law, ignoring Agency, had
so far left its traces, that the principal could not sue or be sued on
the contracts of his Agent by actio Directa, but only in a deri-
vative capacity as cessionary by actio Utilis; that is, by a formula
involving, by permission of the judicature, a certain amount of
Fictitious supposition, or formula in faetum concepta. See above,
$ 108 and 4 § 34,
410 DE OBLIGATIONIBUS. (ar. §§ 155-162
According to some recent writers the above distinction between
contracts of jus gentium and jus civile is not well founded, only
an actio utilis being maintainable in either case. See Windscheid,
Pandekten, IT. § 329.
After explaining obligations founded on contract, Justinian, Inst.
3, 27, treats of a miscellaneous group of obligations which are neither
founded on contract nor on delict, and which, as the circumstances
in which they arise resemble more or less the circumstances of one
or other of the legal conventions, are denominated by the name of
obligations quasi ex contractu. These demand from us a brief notice.
Three of them, namely, those which ground the actions by or
against a tutor, by or against a curator, by or against an unau-
thorized agent (negotiorum gestor), clearly resemble obligations
founded on the contract of mandate. The ward and minor stand
to the tutor and curator nearly in the relation of principal and
agent, although they are legally incompetent to give an authority
(mandatum) or confer a power of administration. A person who,
in the absence and without the knowledge of another, officiously
interfered to protect his interests (voluntarius procurator) incurred
hability and acquired rights against the person in whose affairs he
interfered. English law does not recognize a title to compensation in
the case of officious interference, unless we find a parallel in the rights
of salvors in the case of property lost or endangered on the ocean.
Three other obligations quasi ex contractu, those that are en-
forced by an action for division of common property between tenants
in common (communi dividundo), by action for partition of an in-
heritance between co-successors (familiae erciscundae), by an action
for demarcation of boundaries between adjoining landowners (fini-
um regundorum), resemble the obligations arising in partnership.
These actions are distinguished from all others by the adjudicatio,
a clause in the formula which empowered the judex by the mere
effect of his judgment to operate a transmutation of property.
They are called mixed actions by Ulpian, because both parties are
equally plaintiff and defendant, Dig. 44, 7; 87,1; by Justinian,
because they are both real and personal, that is, embrace questions
both of ownership and obligation ; but were regarded by the jurists
as properly personal actions, because they contemplate a transfer of
property and condemnation of one or other of the parties, in case
of inequality of apportionment, in pecuniary damages by way of
compensation,
mi. §§ 163-167 a.] INSTRUMENTS OF OBLIGATION. 411
The obligation of a heres to a legatee, enforceable by actio legati
(condictio ex t: stamento), is another case of obligation qrasi ex
contractu. The aditio of the hereditas may be regarded as a
promise to satisfy the bequests.
§§ 35, 36.
Aditio is called Obligatio, 2
Again, money paid by mistake or without consideration (indebi-
tum solutum) created an obligation to repay, enforceable by indebiti
soluti condictio, which closely resembles the obligation created by
the contract of mutuum, see § 91.
PER QUAS PERSONAS NOBIS OBLIGATIO ACQUIRATUR.
$ 163. Expositis generibus obli-
gationum quae ex contractu nas-
cuntur, admonendi sumus adquiri
nobis non solum per nosmet ipsos,
sed etiam per eas personas quae in
nostra potestate manu mancipioue
sunt.
$164. Per liberos quoque ho-
mines et alienos seruos quos bona
fide poesidemus, adquiritur nobis,
sed tantum ex duabus causis, id est
si quid ex operis suis uel ex re
nostra adquirant.
$165. Per eum quoque seruum
in quo usumfructum habemus, si-
militer ex duabus istis causis nobis
adquiritur.
§ 166. Sed qui nudum ius Qui-
tritium in seruo habet, licet dominus
sit, minus tamen iuris in ea re
habere intellegitur quam usufruc-
tuarius et bonae fidei possessor.
nam placet ex nulla causa ei ad-
quiri posse; adeo ut etsi nomina-
tim ei dari stipulatus fuerit seruus,
mancipioue nomine eius acceperit,
quidam existiment nihil ei adquiri.
$167. Communem seruum pro
dominica parte dominis adquirere
eertum est; excepto eo quod uni
nominatim stipulando aut mancipio
accipiendo illi soli adquirit, uelut
$163. Having thus classified
obligations produced by contract,
we remark that obligations may be
acquired not only by our own con-
tracts, but also by the contracts of
persons in our power, in our hand,
in a state of mancipation to us.
$164. Freemen, also, and the
slaves of another person, acquire
for the person who possesses them
in bona fides; only, however, in
two circumstances, that is to say,
when they acquire by their own
labour, or in dealing with the pro-
perty of the bona fide possessor.
$ 165. A usufructuary slave ac-
quires for the tenant for life under
the same conditions.
$ 166. The owner of the naked
quiritary property in a slave has
less right in his acquisitions than
the tenant for life or bona fide
possessor; for under no circum-
stances do the acquisitions of the
slave enure to his benefit; and
even when expressly named by the
slave in a stipulation or mancipa-
tion, according to some authorities,
the nude proprietor acquires no
right.
§ 167. A common slave acquires
for all his proprietors in the propor-
tion of their property, unless he
names one exclusively in a stipula-
tion or mancipation, in which case
412
cum ita stipuletur TITIO DOMINO
MEO DARI SPONDES? aut cum ita
mancipio acciplat HANC REM EX
IVBE QVIRITIVM L. TITII DOMINI
MEI ES8F AIO EAQVE EI EMPTA
ESTO HOC AERE AENEAQVE LIBRA.
$ 167a. Illud quaeritur an quod
domini nomen adiectum efficit,
idem faciat unius ex dominis iussum
intercedens. nostri praeceptores
perinde ei qui iusserit soli adquiri
existimant, afque si nominatim ei
soli stipulatus esset seruus manci-
pioue accepisset. diuersae scholae
auctores proinde utrisque adquiri
putant, ac si nullivs iussum inter-
uenisset.
DE OBLIGATIONIBUS.
[rrx. $$ 163-167 a.
he acquires for him alone. For in-
stance, if he stipulates thus: ‘Dost
thou promise to convey to Titius,
my master?’ or, when he takes
by mancipation, thus: ‘This thing
by quiritary law I declare to be
the property of Lucius Titius, my
master, and for him be it purchased
by this bronze ingot and this scale
of bronze.’
$ 167a. It is a question, whether
the same effect is produced by the
exclusive order of one of the mas-
ters, as by the exclusive mention of
the name of one. My school main-
tain that the sole orderer is the sole
acquirer, just as when one alone is
named by the slave in a stipulation
or mancipation; the other school
maintain that all the owners ac-
quire, just as if there had been no
order.
6 163. Justinian enacted, as we have seen, that while the pecu-
lium profectitium of the filiusfamilias, that is, the peculium which
he derived from the grant of his father, remained the property of
the father; and while in respect of peculium castrense and quasi
castrense the son was paterfamilias, or absolute owner; in respect
of peculium adventitium, that is, other peculium derived from any
other source than the estate of the father, only the usufruct or life
estate should vest in the father, the property or reversion remaining
in the son. In respect of the obligations aequired by the son, the
same principle was to prevail, Inst. 3, 28, pr. ‘The benefit of the
obligations acquired by a son shall be divided, as his property is by
our constitution, into reversion and usufruct; so that the proceeds
of any action shall vest in the father for life, and in the son in
reversion, the whole right of action vesting in the father, according
to the distinctions expressed in the statute.’
§ 167 a. Justinian decided this question in favour of the doctrine
of Sabinus, Inst. 3, 28, 13.
To the persons through whom an obligation can be acquired
might be added the procurator in the later stage of the law, as
soon as the principal was allowed to sue on the contracts of the
agent without the agent’s consent or transfer of his right of action.
Cf. § 162, comm.
un. § 168-181.] Q. M. OBLIGATIO TOLLATUR.
413
QUIBUS MODIS OBLIGATIO TOLLATUR.
$ 168. Tollitur autem obligatio
praecipue solutione eius quod de-
betur, unde quaeritur, si quis con-
sentiente creditore aliud pro alio
soluerit, utrum ipso iure liberetur,
quod nostris praeceptoribus placwzt,
&n ipso iure maneat obligatus, sed
aduersus petentem exceptione doli
mali defendi debeat, quod diuersae
scholae auctoribus uisum est.
$ 169. [tem per acceptilationem
tolliturobligatio. acceptilatioautem
est uelut: imeginaria solutio; quod
enim ex uerborum obligatione tibi
debeam, id si uelis mihi remittere
poterit sic fieri, ut patiaris haec
uerba me dicere QVOD EGO TIBI
PROMISI, HABESNE ACCEPTVM} et tu
respondeas HABEO.
$ 170. Quo genere, ut diximus,
(tantum eae obligationes soluuntur,
quae ex werbis consistunt,) non
etiam ceterae ; consentaneum enim
uisum est uerbis factam obliga-
tionem posse alzis uerbis dissolui.
sed id quod ex alia causa debeatur,
potest in stipulationem deduci et
per (acceptilationem dissolut.
$ 171. Quamuis autem dixerimus
contineri) acceptilationem imagi-
naria solutione, tamen mulier sine
tutoris auctoritate acceptum facere
non potest, cum alioquin solui ei
sine tutoris auctoritate possit.
$172. Item quod debetur, pro
$168. Extinction of an obligation
is effected chiefly by performance of
the thing that is owed. It is dis-
puted, when the creditor consents
to the substitution of a different
performance whether there is a dis-
charge of the original obligation, as
my school consider, or there is a
continuance of the original obliga-
tion, though against a demand a
counteractive defence (an averment
of an independent counter obliga-
tion) may be made by the excep-
tion of fraud, as the other school
maintain.
$ 169. Acceptilation is another
mode of extinguishing an obliga-
tion. Acceptilation is an imaginary
payment by a solemn form of
words. Ifa creditor is willing to
release & debt created by verbal
contract, the object may be accom-
plished by the debtor interrogating
him in these terms: ‘ That which I
promised thee hast thou received 1'
and the creditor answering: ‘I
have received it.'
$ 170. This process, as I said,
only discharges obligations that
arise from verbal contract, and
no others; for logic seems to dic-
tate that where words can bind,
words may also loose. However,
a debt due from any other cause
may be transformed into a debt
on stipulation, and released by
acceptilation.
$ 171. But notwithstanding our
statement that acceptilation is
effected by an imaginary payment,
& woman without her guardian’s
authority cannot release by accepti-
lation, although her receipt of
actual payment without her guar-
dian’s authority discharges the
debtor.
§ 172. So a debt may be paid in
414
parte recte soluitur; an autem in
partem acceptum fieri possit, quae-
situm (est).,
$ 173. Est etiam alia species
imaginariae solutionis per aes et
libram. quod et ipsum genus certis
in causis receptum est, ueluti si
quid eo nomine debeatur quod per
aes et libram gestum sit, siue quid
ex iudicati causa deb(eatur.
$ 174. Eaque res ita. ag)itur:
adhibentur non minus quam quin-
que testes e£ libripens. deinde is
qui liberatur, ita oportet loquatur
QVOD EGO TIBI TOT MILIBVS CON-
DEMNATVS SVM, ME EO NOMINE A
TE SOLVO LIBEROQVE HOC AERE
AENEAQVE LIBRA. HANC TIBI LIB-
RAM PRIMAM POSTREMAMQVE EX-
PENDO (SECVNDVM) LEGEM PVB-
LICAM. deinde asse percutit libram
eumque dat ei a quo liberatur,
ueluti soluendi causa.
$ 175. Similiter legatarius here-
dem eodem modo liberat de legato
quod per damnationem relictum est,
ut tamen scilicet, sicut iudicatus
condemnatum se esse significat, ita
heres testamento se dare damnatum
esse dicat. de eo tamen tantum
potest heres eo modo liberari, quod
pondere numero constet; et ita si
certum sit. quidam et de eo quod
mensura constat tdem existimant.
$ 176. Praeterea nouatione tolli-
tur obligatio; ueluti si quod tu
mihi debeas, a Titio dari stipulatus
sim. nam interuentu nouae perso-
nae noua nascitur obligatio et prima
tollitur translata in posteriorem,
adeo ut interdum, licet posterior
stipulatio inutilis sit, tamen prima
nouationis iure tollatur ; ueluti si
quod mihi debes, a "Titio post
mortem eius uel a muliere pupilloue
sine tutoris auctoritate stipulatus
fuero, quo casu rem amitto; nam
DE OBLIGATIONIBUS.
[nr. $$ 168—181.
part, but whether it can be released
in part by acceptilation is a ques-
tion.
$ 173. There is another mode of
imaginary payment, namely, by in-
got and scale. This also is only
valid in certain cases, as the release
of a debt imposed upon a heres by
a legacy per damnationem in a
mancipatory will, or of a judgment
debt.
$ 174. There must be present
five witnesses and a holder of the
scales, and the judgment debtor
to be released must say these
words : * Whereas I am condemned
to thee in so many thousand
sesterces, that debt I pay and
discharge by this ingot and balance
of bronze. This is the first, this the
last, ingot of bronze that I weigh
out to thee according to the terms
of the statute.’ Then he strikes the
scale with the ingot and gives it to
the creditor as if in payment.
$175. Similarly, the legatee re-
leases the successor from a legacy
left in the form of condemnation,
except that whereas the judgment
debtor recites his condemnation by
the judgment, the successor recites
his condemnation by the testament
of the deceased. A debt can be
thus discharged only if certain in
amount and estimated by number
or weight, or, according to some, by
measure.
$176. Novation is another mode
of extinguishing an obligation, and
takes place when you owe me a
sum and I stipulate payment
thereof from Titius, for the inter-
vention of a new person gives birth
to a new obligation, and the first
obligation ceases, being transformed
into the second. Sometimes, even
though the second stipulation is in-
valid, the first is avoided by nova-
tion; for instance, if you owe me a
sum, and I stipulate from "Titius
nr.$$168-181.] Q. M. OBLIGATIO TOLLATUR.
et prior debitor liberatur et posterior
obligatio nulla est. non idem iuris
est sia seruo stipulatus fuero; nam
tunc (prior) proinde adhuc obli-
gatus tenetur, ac si postea a nullo
stipulatus fuissem.
$ 177. Sed si eadem persona sit,
@ qua postea stipuler, ita demum
nouatio fit, si quid in posteriore
stipulatione noui sit, forte si con-
dicio aut dies aut sponsor adiciatur
aut detrahatur.
§ 178. Sed quod de sponsore
diximus, non constat ; nam diuersae
scholae auctoribus placuit nihil ad
nouationem proficere sponsoris ad-
lectionem aut detractionem.
$179. Quod autem diximus, si
condicio adiciatur, nouationem fieri,
sic intellegi oportet, ut ita dicamus
factam — nouationem, $i condicio
extiterit ; alioquin si defecerit, durat
prior obligatio. sed uideamus num
is qui eo nomine agat, doli mali aut
pacti conuenti exceptione possit
summoueri, quia uidetur inter eos
id actum, ut ita ea res peteretur, si
posterioris stipulationis extiterit
condicio. Ser. tamen Sulpicius
existimauit statim et pendente con-
dicione nowationem fieri, et si de-
fecerit condicio, ex neutra causa
agi posse (et) eo modo rem perire.
qui consequenter et illud respondit,
si quis id quod sibi L. Titius deberet,
a seruo fuerit stipulatus, nouatio-
nem fieri et rem perire, quia cum
seruo agi non posset. (sad) in
utroque casu alio iure utimur. nec
magis his casibus nouatio fit, quam
&i id quod tu mihi debeas, a pere-
grino cum quo sponsus communio
non est, SPONDES uerbo stipulatus
sim. !
415
payment thereof after his death, or
if I stipulate payment thereof from
a woman or ward without the guar-
dian's authority, in this case my
claim is extinguished, for the first
debtor is discharged, and the second
obligation is void. The same does
not hold if I stipulate from a slave,
for then the former debtor continues
bound, just as if there was no sub-
sequent stipulation.
$177. But when the original
debtor is the promiror, a second
stipulation only operates a novation
if it contains something new; if a
condition, for instance, or a sponsor,
or a term is added or omitted.
§ 178. Respecting the sponsor,
however, there is a controversy ; for
the other school hold that novation
is not operated by & sponsor being
added or omitted.
$ 179. The statement that a con-
dition introduced operates a nova-
tion must be restricted to mean,
that a novation is produced if the
condition is accomplished ; if the
condition fails the prior obligation
eontinues in force. However, it
wil be a question, whether the
creditor who sues on that obliga-
iion cannot be repelled by the
counteracting plea of fraud, or of
accord and agreement ; and whether
it was not the intention of the
parties that the debt should be ir-
recoverable unless the condition of
the second stipulation were realized
[i.e. to release the prior obligation
in the event of the failure of the
condition annexed to the subsequent
stipulation]. ^ Servius Sulpicius
even held that novation occurs
immediately, and while the accom-
plishment of the condition is still
uncertain; and that, if the condition
fails, neither obligation can be sued
upon, and the creditor's claim is
extinguished ; and, consistently
herewith, he held that, if the debt
416
§ 180. Tollitur adhuc obligatio
litis contestatione, si modo legi-
timo iudicio fuerit actum. nam
tunc obligatio quidem principalis
dissoluitwr, incipit autem teneri
reus litis contestatione ; sed st con-
demnatus sit, sublata litis contesta-
tione incipit ex causa iudicati teneri.
et hoc (est) quod apud ueteres
scriptum est, ante litem contestatam
dare debitorem oportere, post litem
contestatam condemnari oportere,
post condemnationem iudicatum
facere oportere.
$181. Vnde fit, ut si legitimo
iudicio debitum petiero, postea de
eo ipeo iure agere non possim, quia
inutiliter infendo DABI MIHI OPOR-
TERE, quia litis contestatione dari
oportere desiit. aliter atque si
imperio continenti iudicio egerim ;
tune enim nihilo minus obligatio
durat, et ideo ipso iure postea agere
possum, sed debeo per exceptionem
rei iudicatae uel in iudicium de-
ductae summoueri. quae autem
legitima iudicia et quae imperio
continentia (sini), sequenti com-
mentario referemus.
DE OBLIGATIONIBUS.
[mz. $$ 168-181.
of Lucius Titius is stipulated by
the creditor from a slave, novation
takes place, and while the original
obligation is extinguished, the
second is void because the slave
cannot be sued. But in both cases
the contrary rule prevails, and no
novation occurs in these cases any
more than it occurs if an alien, who
cannot be sponsor, promise pay-
ment of a debt by the solemn term,
* spondeo.’
§ 180. The extinction of an obli-
gation is also effected by the com-
mencement of an action, at least of
a statutory action [that is to say, an
action substituted by statute for
any form of statute-process|. Then
the original obligation is dissolved,
and a new obligation is imposed on
the defendant, by the commence-
ment of the action. If he is con-
demned, the second obligation is
discharged, and a third obligation
is imposed by the judgment. Hence
the saying of the old writers, that,
before action brought, a defendant
is required by the law to convey;
after action brought, he is required
to be condemned ; after condemna-
tion passed, he is required to satisfy
the judgment.
$ 181. Accordingly, after suing
by statutory action, the extinction
of the original obligation disables
me from bringing a second action,
for the declaration that the de-
fendant is bound to convey is false,
as the commencement of the first
action terminated his obligation to
convey. It is otherwise if I sued
at first by an action determining
with (or, deriving its force from
the praetorship. Then the origi
obligation continues, and its non-
extinction permits me to bring a
second action; but I may be re-
pelled by the counteracting plea of
previous judgment or previous liti-
gation. What actions are statutory,
ur. $$ 168-181.] LIBERATIO. 417
and what determine with (or, derive
their force from) the praetorship,
will be explained in the next book
of these Institutions.
§ 168. Gaius only considers at present the modes of extinguishing
an obligation, i.e. the modes whereby an obligation ceases to exist.
In the next book, 4 § 115, he will treat of the exceptio, that is to
say, a defence to an action whereby, though the right of the plain-
tiff continues to exist, it is deprived of its operation by being con-
fronted with an adverse right of ihe defendant; which defence
required to be alleged with the permission of the praetor in a
special clause of the formula called the exceptio.
Every obligation, as we have seen, 1 § 88, commentary, relates
to a certain datio, factio, or praestatio; that is to say, the fulfilment
or satisfaction (solutio) of every obligation will consist in datio,
factio, or praestatio.
The doctrine of Sabinus, that a substituted performance with
the consent of the creditor (in solutum datio) operates the extinction
of an obligation, was the view that ultimately prevailed. Mani-
festi juris est, tam alio pro debitore solvente, quam rebus pro
numerata pecunia consentiente creditore datis tolli paratam obliga-
tionem, Cod. 8, 48, 17. ‘It is certain that payment by a third
person, and the conveyance of goods instead of money, with the
consent of the creditor, discharges an obligation.
$ 170. Aquilius Gallus, the colleague of Cicero in his praetorship,
the pupil of Quintus Mucius and teacher of Servius Sulpicius, was
the inventor of formulas relating to dolus malus, Cic. de Off. 3, 14,
and a mode of releasing from all obligations by & verbal ceremony,
Inst. 8, 29, 2. ‘There is a stipulation called Aquilian, whereby all
obligations are transmuted into a verbal one, and forthwith dis-
charged by acceptilation. For the Aquilian stipulation operates a
novation of all pre-existing debts, and is thus expressed: “ What-
ever thing, on whatever title, thou art or shalt be bound to convey
to me or to perform for me now or hereafter, absolutely or con-
ditionally ; whatever thing I have or shall have an action, personal,
real, or extraordinary, against thee to recover; whatever thing of
mine thou hast, detainest, possessest, hast possessed, or hast fraudu-
lently parted with possession of ; whatever sum is the value of all
these things, that sum dost thou promise to pay me?” so asks
Aulus Agerius, and Numerius Negidius answers: “I promise.”
Ee .
418 DE OBLIGATIONIBUS. [11i. $$ 168—181.
Then Numerius Negidius asks of Aulus Agerius: “ Whatever I
have promised thee to-day by the Aquilian stipulation, hast thou
received it all in full?” and Aulus Agerius answers: “I have, and
have given thee my release."
The narrative form (stipulatus est, spopondit, interrogavit) in
which the transaction is expressed by Justinian, properly belongs,
not to the stipulation and acceptilation, but to the written memo-
randum (cautio) in which they are recorded.
§ 172. It was subsequently an established doctrine that a partial
release by acceptilation was valid, Dig. 46, 4, 18, 1.
The release of a legaey would be operated per aes et libram
[nexi liberatio] because the will containing the bequest was a
transaction per aes et libram, on the principle that all obligations
may be released by the process whereby they were contracted.
Nihil tam naturale est quam eo genere quidquid dissolvere quo
colligatum est, Dig. 50, 17,35. * Nothing more natural than the
likeness of the means of binding and of unbinding? Omnia quae .
jure contrahuntur, eontrario jure pereunt, Dig. 50, 17, 100. ‘To
every legal form of charging corresponds a legal form of discharg-
ing. Fere quibuscunque modis obligamur, iisdem in contrarium
actis liberamur, Dig. 50, 17, 153. ‘To every mode of obligation
there is an obverse mode of liberation."
It is not so easy to explain why a judgment debt could only
be released by the proceeding with the bronze and scales. Perhaps
it was considered that a judgment being an act of the State could
only be discharged by another act of the State, and that the nexum
satisfied this requirement, the witnesses and balance-holder symbol-
izing the people in assembly, and the declaration of the lex of the
nexum symbolizing a legislative enactment.
As there are five modes of contracting an obligation, nexu,
verbis, literis, re, consensu, there are as many corresponding modes
of exoneration. Three of these, re, verbis, nexu, have been men-
tioned. Gaius says nothing of exoneration literis, but it is clear
that as a debt could be constituted by expensilatio, so it could be
cancelled by a corresponding accepti relatio.
A consensual contract, not yet followed by partial execution (re
nondum secuta, Inst. 3, 29, 4), could be dissolved by a contrary
convention. Hae obligationes quae consensu contrahuntur contraria
voluntate dissolvuntur, ibid. ‘ Obligations which consent creates, a
contrary accord dissolves.’ After a part performance, for instance,
ur $$ 168-181.] LIBERATIO. 419
a conveyance of the consideration by one of the parties, the contract
was not abandoned until the other party had made restitution,
Cod. 4, 45, 1.
Not only could the obligation created by consensual contract be
extinguished by consent, but obligation created by delicet could by
certain statutes be obliterated by convention. Legitima conventio
est quae lege aliqua confirmatur, et ideo interdum ex pacto actio
nascitur vel tollitur quotiens lege vel senatusconsulto adjuvatur,
Dig. 47, 10,6. ‘A convention is statutory which derives validity
from some statute, and grounds or destroys a right of action.’
Thus the obligation and action arising out of outrage (injuriarum)
and theft could be extinguished by pact, in the latter case, by
enactment of the Twelve Tables.
§ 176. It seems irrational that an invalid contract should be
held to operate a novation, but a contract might be valid by Jus
gentium though invalid at Civil law; and in respect of Novation
naturalis obligatio was placed on a level with civilis obligatio.
Novatio est prions debiti in aliam obligationem, vel civilem vel
naturalem, transfusio atque translatio, hoc est cum ex praecedente
causa ita nova constituitur ut prior perimatur. . . . Qualiscunque
igitur obligatio est quae praecessit, novari verbis potest, dummodo
sequens obligatio aut civiliter teneat aut naturaliter, ut puta si
pupillus sine tutoris auctoritate promiserit, Dig. 46, 2, 1. ‘ No-
vation is the transfusion or transfer of the object of a prior debt
into à subsequent obligation, civil or natural; or the destruction
of a prior right by the constitution of a second. Every kind of ob-
ligation can undergo novation by verbal contract, provided that the
subsequent obligation binds either by law civil or by law natural, as
the promise of a ward without his guardian's authority.
§ 177. We have already seen an instance of novation when treat-
ing of delegatio, §§ 155-162, comm., the satisfaction of a debt by
substitution of a debtor. The substituted debtor who discharges
the first is called expromissor, §§ 110-127, comm.
6 178. We see by Justinian, Inst. 3, 29, 3, that the addition or
omission of a fidejussor was finally held to operate a novation.
$ 179. Servius Sulpicius was wrong because novation implies
a subsequent obligation, but a conditional obligation is really no
obligation until the condition is realized. So if the prior obligation
is conditional and the second obligation absolute, the novation is
not absolute but conditional, because there is really no prior obli-
Ee2
420 DE OBLIGATIONIBUS. [rrr. $$ 168-181.
gation until the condition is realized, at which moment novation
takes place, and the prior obligation is extinguished.
Justinian enacted that no contract should operate a novation,
unless the stipulating parties expressly declared their intention that
such novation should be produced, Inst. 3, 29, 3.
$ 180. Liris contEsTATIO, Joinder in issue, or the commencement
of a suit, denoted, under the system of statute-process, when
pleadings were oral, the close of the proceedings in jure, when, the
praetor having allowed an action, each party called those who were
present to attest the nature of the issue allotted to be tried.
Festus. * Contestation is when both parties exclaim, “Give your
attestation.” It marks the definitive settlement of the issue to be
tried.” Under the formulary system the term was still employed,
but marked the moment when the praetor delivered the written
formula containing the commission of the judex. Under the third
period of the law, when the praetor or highest judicial functionary
was himself the judex, that is, no longer delegated the cause to an
inferior authority (judex pedaneus), but heard and determined it
himself, Litis Contestatio denoted the commencement of the trial
before the judex. Lis enim tunc contestata videtur, quum judex
per narrationem negotii causam audire coeperit, Cod. 8, 9, 1. * Litis
contestatio is the moment when the judge begins to hear the recital
of the cause of action By legitima judicia, 4 § 103, Gaius denotes
those actions in the formulary procedure which by provision of the
lex Aebutia, whereby statute-process was abolished, were declared
to have the same effect, in respect of novation and otherwise, as the
statute-process, which they superseded. Actions terminable with
the praetorship were such actions as did not derive their validity
from the lex Aebutia, but from the administrative power of the
praetor.
The transformations of Litis contestatio which are described
above were not the last that it was destined to undergo. In the
first stage of procedure under the Canon law, after the libellus of the
plaintiff had been read aloud, the judge asked the plaintiff whether
he abided by his suit; and, on his answer in the affirmative, his
libellus was contradicted by the defendant in general terms (nego
narrata prout narrantur et dico petita fieri non debere). The
detailed contention of the parties over the particular averments of
the plaintiff did not follow till a subsequent stage.
In Germany in 4.p. 1654 an ordinance of the empire required
ut. $$ 168-181. ] LITIS CONTESTATIO. 421
the defendant to answer all the allegations of the plaintiff and
adduce all his own exceptions at the first stage: and, as in practice
the reading of the plaintiff’s libellus was omitted, the Litis con-
testatio, or first term or stage of the suit, consisted in this detailed
answer of the defendant. Subsequently, when written documents
superseded oral procedure, the Litis contestatio was identified with
the defendant’s delivery of what was called his book of exceptions.
The Novation produced by Litis contestatio is called by modern
writers Novatio necessaria. It has not all the incidents of Novatio
voluntaria, or Novation induced by convention: for instance, as
Litis contestatio must not deteriorate the position of the creditor,
the object of its incidents being to remove the disadvantages which
he suffers from the duration of the suit, it does not extinguish the
accessaries of the principal obligation, e.g. privilegia of widow or
infant, &c., interest, hypotheca, p. 352, Dig. 46, 2, 29. It originally,
as we have seen, in consequence of the Correality of the Fidejussor,
i.e. the unity of his obligation with that of the principal, extin-
guished the liability of the Fidejussor: but this rule, as we have
mentioned, was abrogated by Justinian, who enacted that the
liability of the Fidejussor could not be extinguished by Litis con-
testatio, but only by Solutio.
Nor, secondly, did Novatio necessaria, though it extinguished
Civilis obligatio, prevent, like Novatio voluntaria, the continuance
of Naturalis obligatio, Dig. 12, 6, 60.
Under Justinian Litis contestatio lost half of its effect: it still
retained the positive function of generating a new obligation ; but
it ceased to have the negative function of extinguishing the old
obligation. From this time, accordingly, we cease to hear of pro-
cess-consumption whether extinctive (litis consumptio ipso jure) as
relating to statutory actions, or counteractive (exceptio rei in judi-
cium deductae) as relating to actions dependent on the authority
of the praetor. Indeed the former of these (litis consumptio ipso
jure) had disappeared long before, contemporaneously with the dis-
appearance of legitima judicia ; that 1s to say, with the abolition of
the ordo judiciorum (formulary system), and the transformation of
all procedure into cognitio extraordinaria.
Gaius attributes a Novative power not only to Litis contestatio,
but also to Judgment (res judicata). Judgment, like litis con-
testatio, has two functions, one Negative, the other Positive. By
ite Negative operation it extinguishes the previous right of action :
422 DE OBLIGATIONIBUS. [nr. $$ 168-181.
by its Positive it entitles, in the event of Condemnatio, to Execu-
tion. The Positive function is in the interest of the plaintiff: the
Negative principally in the interest of the defendant. Under Jus-
tinian the novative effect of Judgment, as well as that of Litis con-
testatio was considerably altered. It was partly narrowed: e.g. an
absolution on the ground of Plus petitio, 4 § 53, or of a dilatory ex-
ception, 4 § 120, no longer grounded an exceptio rei judicatae : and
it was partly extended: for instance it founded exceptio rei judicatae
not only in respect of the principal question, but also in respect of
incidental questions, whose decision was preliminary to that of the
principal question, and in respect of any exceptions or replications.
In view of these changes it is said that Res judicata, like Litis
contestatio, while it retained its positive functions, lost its negative
functions. But while it still generated an exceptio rei judicatae it
seems difficult to say that it ceased to have a negative or consump-
tive operation: though this was attenuated, and made more
rigorously subsidiary to the positive operation; and was henceforth
left entirely to the discretion of the praetor.
The present seems to be the most convenient occasion that we
shall find for gathering together in one conspectus the various
operations and effects of Litis contestatio: fuller explanations of
each will be found scattered over this treatise in connexion with the
various matters to which such operations relate.
1. The principal operation was originally the processual con-
sumption of a right of action (litis consumptio) which has just been
described : the barring of any subsequent suit in virtue of the maxim :
De eadem re ne bis sit actio, Quintilian, 7, 6, 1, either by extinction
(ipso jure) or by counteraction (ope exceptionis) of the plaintiff’s right
to sue. This occurred, as we shall see, 4 § 103, even when in conse-
quence of process-prescription there was no judgment, or when, by
reason of Plus petitio or some dilatory plea, there was a judgment
against the plaintiff but not upon its merits. The operation was
gradually abrogated before the time of Justinian, only leaving
traces of itself in the Novatio necessaria, which extinguished indeed
eivilis obligatio but left a naturalis obligatio, sufficient to support
the pignora or hypothecae by which the plaintiff was protected.
Processual consumption had only considered the Intentio of the
action that was brought: the exceptio rei judicatae, by which in
later times the same or similar objects were accomplished, regarded
the exact import of the Sententia. The most signal departure from
nr. $$ 168-181.] LITIS CONTESTATIO. 423
the principle of processual consumption was perhaps Justinian's
constitution, Cod. 8, 41, 28, concerning Correality and Fidejussio,
p. 398. As Correality is a single obligation imposed on several
debtors, a suit against one extinguished the obligation of the
remainder: e.g. a suit brought against a principal extinguished
the right of suing the surety, and vice versa, Justinian enacted
that the obligation of the remaining correal debtors should not be
extinguished even by judgment against one, but only by perceptio,
solutio, satisfactio, complete satisfaction of the plaintiff’s claim.
2. (a) Litis contestatio, in the classical period, by interrupting
Prescription, 4 § 110, saved the plaintiff's title from being barred
by lapse of time. At a later period, Prescription was interrupted
by a still earlier event, Insinuatio. As soon as Prescription of the
right of action was interrupted, Prescription of pendency began to
run, 4 $ 103. |
Moreover, respecting the plaintiff's Title or ground of action it
is a general rule that no causa superveniens, or entitling event, sub-
sequent to Litis contestatio can avail to save the plaintiff from
losing the action already brought, though it may give him the
right to bring another. Further, as a general rule, the ground of
action must not only exist before Litis contestatio but must con-
tinue up to condemnatio. Otherwise in virtue of the maxim:
Omnia judicia esse absolutoria, 4 $ 114, the defendant will be ab-
solved. E.g.if the defendant in an action of theft was a conditional
legatee of the thing which he has stolen from the heir who sues
him for theft, and the condition is fulfilled after Litis contestatio,
the defendant is acquitted, Dig. 13, 1, 14, pr.
(^) Litis contestatio made, an exception to the latter rule in
respect of the ancient institution of Usucapio ; which though not
interrupted by litis contestatio, did not entitle the defendant to
abeolution, as litis contestatio made it revocable, Dig. 6, 1, 18.
Longi temporis praescriptio, like other forms of Prescription, was
interrupted by litis contestatio, or, in later times, by Insinuatio :
and from Cod. 7, 33, 10 and Cod. 7, 40, 2, this seems to have been
the result when Justinian transformed longi temporis possessio into
Usueapion. Savigny, however, § 261, and Vangerow, § 160, hold
that then the rule of Prescription was in this respect superseded by
the rule of Usucapion : that litis contestatio or insinuatio produced,
that is to say, not interruption but liability to revocation.
(c) Litis contestatio produced another exception to the rule in
424 DE OBLIGATIONIBUR. [1r. §§ 168—181.
the event of the destruction of the subject of litigation by casualty
(casus) In Real actions if the defendant is a Mala fide possessor :
in Personal actions if he is Morose (a debtor chargeable with mora)
destruction of the subject, although ascribable to Casus, and not-
withstanding the maxim: Impossibilium non est obligatio, does not
save the defendant from condemnation. In the absence of Mala
fides and Mora, casual destruction of the subject entitles the
defendant, in virtue of the above maxim, to absolution. See
p. 905.
(d) Litis contestatio makes transmissible a right of action which
before was untransmissible. Vindictive actions (actiones vindictam
spirantes), so long as there has been no litis contestatio, are incapable
of active transmission ; i.e. transmission to the heir of the plaintiff :
and penal actions are incapable of passive transmission ; i. e. trans-
mission to the heir of the defendant. But when onoe litis contes-
tatio has taken place, these actions, in the event of the subsequent
death of the plaintiff or defendant, become capable respectively of
active and passive transmission, 4 $ 112.
(e) In an action on Tort when a man is only suable to the extent
of his enrichment thereby, the question whether he is enriched or
not is decided entirely by his circumstances at the moment of litis
contestatio.
It was stated that as a general rule the plaintiff’s title to judg-
ment was required to be in existence before litis contestatio. This
is subject to exception in respect of some of the subordinate elements
of title, certain minor conditions of judgment in his favour which
agree in the common character that, in the formulary period, they
were not expressed, as conditions of the judgment, in the intentio
of the formula. E.g. in vindicatio the possession of the subject
by the defendant, although it commences after litis contestatio,
suffices to render him liable to be condemned. So in the actio de
peculio, the existence of a peculium; in the actio mandati, the
existence of moneys belonging to the principal in the hands of the
agent; in the actio pigneraticia, the satisfaction of the debt by the
mortgagor; all respectively conditions of & judgment in favour of
the plaintiff, render the defendant liable to condemnatio even when
they are events subsequent to the institution of the suit.
The same applies to certain exceptions: in the exceptio divisionis
the question respecting the solvency of co-debtors, p. 402, and in
the beneficium competentiae, the question respecting the means of
1n. § 182.] O. EX DELICTO. 425
the defendant, p. 350, is decided according to the circumstances in
existence at the moment of condemnation.
3. Litis contestatio has hitherto been considered in respect of its
influence on the Conservation or Destruction of a ground of action.
We proceed to its effect on the Amount of the condemnation.
(a) To save the plaintiff from being injured by the unavoidable
duration of the suit, without, however, deterring the defendant from
the defence of what he honestly believes to be his rights; a judg-
ment against the defendant requires him to restore Omnis Causa, i.e.
omne quod habiturus esset actor, si statim judicii aecepti tempore
res ei reddita fuisset, Dig. 6, 1, 20, all that the plaintiff would have
had if the thing had been restored at the moment of litis contestatio.
This implies the restitution of Fructus, all the gain of whatever
nature that the defendant has derived from the fact of possession.
If the object claimed is a sum of money, the defendant, notwith-
standing the absence of mora, must pay Interest from the date of
litis contestatio, 2, 280, comm.
(6) After litis contestatio the defendant, the bona fide possessor
as well as the mala fide possessor, the debtor free from mora as well
as the debtor chargeable with mora, is liable for Culpa of every
kind and degree, and responsible for the destruction and deteriora-
tion thereby oecasioned. E.g. he is liable for neglected fruits
(fructus percipiendi) as well as for fructus consumpti and fructus
extantes, for the omission to collect the fruits is a piece of culpable
supineness.
In hereditatis petitio effects a and 6 are made by Sc. Juventianum
to date not from litis contestatio, but from a still earlier period, the
moment of Insinuatio.
(c) Litis contestatio in actiones stricti juris fixes the moment to
be regarded in the valuation of the plaintiff's interest in the subject
of dispute (litis aestimatio). In bona fide actions this date is given
by the moment of Condemnatio. See 4 § 51.
4. Litis contestatio affects the character of the Subject of liti-
gation, which it converts into res Litigiosa, thereby rendering
unlawful ite alienation by the plaintiff or defendant. See 4 § 117.
DE OBLIGATIONIBUS QUAE EX DELICTO NASCUNTUR.
$ 182. Transeamus nunc ad obli- $182. We proceed to obligations
gationes quae ex delicto nascuntur, which originate in delict ; theft, for
ueluti si quis furtum fecerit, bona instance, rapine, damage, or out-
426 DE OBLIGATIONIBUS. [rri. $ 182.
rapuerit, damnum dederit, iniuriam rage; which are always Real, or in-
commiserit; quarum omnium rerum curred by some act or performance ;
uno genere consistit obligatio, cum whereas contractual obligations may
ex contractu obligationes in Tir be created in four different ways, as
genera dzducantur, sicut supra we have seen.
exposuimus.
All actions are founded on the violation of some right, that is
to say, on a wrong or delicet. Even actions on contract are founded
on a wrong, namely, on a breach of contract, and the plaintiff
recovers not his primary right but a sanctioning right, in whatever
measure it may be awarded. Delict (delictum, maleficium), how-
ever, is generally used in a more limited sense, to signify any wrong
or unlawful act other than a breach of convention. Breach of con-
tract is the violation of a jus in personam, or right available against
& determinate person: delict in the narrower sense is a violation of
@ jus in rem, or right available against all the world. Jus in rem
includes not only property and servitude but also rights of status,
and what we have called primordial righta, e. g. the right to liberty,
security, health, honour, reputation, for these rights can be main-
tained not against certain persons only but against all mankind.
Delicts or wrongs have a further division, into public and private.
Public wrongs are called crimes, private wrongs are called tres-
passes, or torts, or civil injuries. Crimes have been defined to be
such unlawful acts as are injurious in the first instance to the State ;
civil injuries, such as are harmful, principally or exclusively, to
private individuals. But this definition is not satisfactory, because
all or most crimes are injurious to private individuals, and all or
most civil injuries are harmful to the community. A better defi-
nition is the following : Crimes are those unlawful acts which create
an obligation (liability to punishment) which can only be remitted
by the State; Civil injuries are those unlawful acts which engender
an obligation remissible by the private individual whose primary
rights are violated.
The following may be taken as a natural classification of actions.
Every right of action arises out of a delict, i.e. a violation of some
positive or negative obligation.
(1) A violation of a positive obligation, that is, an obligation to
perform, is a violation of a jus in personam, and founds an action
for breach of contract, called an action ex contractu.
(2) A violation of a negative obligation, that is, an obligation to
abstain, is a violation of a jus in rem, and either imposes an obli-
ur. § 182.] O. EX DELICTO. 427
gation remissible by the individual aggrieved, founding a civil
action real or personal, and called in the latter case an action ex
delicto ;
(3) Or imposes an obligation remissible by the State but irremis-
sible by the individual, founding a criminal prosecution.
Actions ex contractu seek to enforce both the righte immediately
founded on a contract and those created by a party's subsequent
unlawful intention (dolus) or carelessness (culpa) in relation to the
contract.
Real actions and actions ex contractu imply that a defendant
HAS something which he ought not to have: withholds from the
plaintiff some thing or service of pecuniary value to which the
plaintiff is entitled. They do not necessarily impute unlawful dis-
position (dolus or eulpa) to the defendant. Actions ex delicto do
not necessarily imply that the defendant Has what he ought not to
have; they necessarily impute unlawful disposition (dolus or culpa)
to the defendant, $ 211, and imply imputabihty, or responsibility
for dolus and culpa.
In respect of contracts Culpa is distinguished as of different
degrees; and sometimes a higher, sometimes a lower degree is
capable of generating obligation. In respect of delicts Culpa 1s not
distinguished by gradations; the least Culpa suffices to generate
obligation.
All actions ex delicto are Penal, either bilaterally or unilaterally ;
that is, they tend, if not both to enrich the plaintiff and impoverish
the defendant (bilaterally penal) at least to impoverish the de-
fendant without enriching the plaintiff (unilaterally penal), as, for
example, suits for mdemnification. Real actions and actions ex
contractu are not Penal but Civil, Conservative, or Restorative ;
they maintain the fortunes of both parties at their original level ;
at the level destroyed or impeded by the defendant's wrong. We
have before used the term Civil to distinguish the Private code
from the Political code and the Criminal code. We here take it
in a narrower sense to distinguish that part of the Private code
which deals with Domestic relations and Dominion and Obligation
ex contractu from that part which deals with Obligation ex delicto,
which latter part may be called the Penal code. Penal juris-
prudence forms a sort of intermediate between Civil jurisprudence,
in this narrower sense, and Criminal jurisprudence.
428
DE OBLIGATIONIBUS.
[1rr. $$ 183-208,
DE FURTIS.
§ 183. Furtorum autem genera
Ser. Sulpicius et Masurius Sabinus
Till esse dixerunt, manifestum et
nec manifestum, conceptum et obda-
tum; Labeo duo, manifestum (et)
nec manifestum ; nam conceptum et
oblatum species potius actionis esse
furto cohaerentes quam genera fur-
torum ; quod sane uerius uidetur,
sicut inferius apparebit.
$ 184. Manifestum furtum qui-
dam id esse dixerunt, quod dum fit,
deprehenditur. alzi uero ulterius,
quod eo loco deprehenditur, ubi
fit, ueluti si in oliweto olivarum, in
uineto uuarum furtum factum est,
quamdiu in eo oliueto aut uineto
fur sit; aut si in domo furtum
factum sit, quamdiu in ea domo fur
sit. alii adhuc ulterius eo usque
manifestum furtum esse dixerunt,
donec perferret eo quo perferre fur
destinasset. alii adhuc ulterius,
quandoque eam rem fur tenens
uisus fuerit; quae sententia non
optinuit. sed et illorum sententia
qui existimauerunt, donec perferret
eo quo fur destinasset, deprehensum
furtum manifestum esse, ideo non
uidetur probari quia magnam reci-
pit dubitationem, utrwm unius diei
an etiam plurium dierum spatio id
terminandum sit. quod eo pertinet,
quia saepe in aliis ciuitatibus sub-
reptas res in alias ciuitates uel in
alias prouincias destinant fures per-
ferre. ex duabus itaque superiori-
bus opinionibus alterutra adpro-
batur; magis tamen plerique post-
eriorem probant.
$183. Thefts are divided by Ser-
vius Sulpicius and Masurius Sabinus
into four kinds, theft detected in
the commission, simple theft, the
possession of stolen goods discovered
upon search, and the introduction
of stolen goods. Labeo makes only
two kinds, theft detected in the
commission and simple theft, be-
cause the possession and introduc-
tion of stolen goods are not thefts,
but actionable circumstances con-
nected with theft; and this seems
the better opinion, as will presently
appear.
$184. Theft detected in the com-
mission is limited by some to de-
tection in the act of taking; by
others extended to detection while
the thief is in the place where the
theft is committed; for instance,
if olives are stolen from an olive-
yard, or grapes from a vineyard,
while the thief is in the oliveyard,
or vineyard ; or if a theft 1s com-
mitted in a house, while the thief
is in the house. Others extend it
to detection before the thief has
carried the goods away to the place
where he intends to deposit them ;
others to detection while the thief
has the goods in his hands. The
fourth opinion has not been adopt-
ed, and the third opinion that,
until the thief has carried the stolen
goods to their place of destination,
he may be detected in the commis-
sion, is also impugned on the ground
of the uncertainty whether one day
or several is the limit of the time
within which he must be detected;
for a thief often intends to carry
the goods he has stolen in one city
into another city or province. The
first and second opinions are com-
monly adopted, and more generally
the second.
rr. $$ 183-208. ]
$185. Nec manifestum furtum
quid sit, ex tis quae diximus intelle-
gitur. nam quod manifestum non
est, id nec manifestum est.
§ 186. Conceptum furtum dici-
tur, cum apud aliquem testibus
praesentibus furtiua res quaesita et
inuenta sit. nam in eum propria
actio constituta est, quamuis fur non
sit, quae appellatur concepti.
$ 187. Oblatum furtum dicitur,
cum res furtiva tibi ab aliquo
oblata sit eaque apud te concepta
sit; wtique si ea mente data tibi
fuerit, ut apud te potius quam apud
eum qui dederit, conciperetur. nam
tibi, apud quem concepta est, pro-
pria aduersus eum qui optulit,
quamuis fur non sit, constituta est
actio, (quae) appellatur oblati.
$ 188. Est etiam prohibiti furti
(actio) aduersus eum qui furtum
quaerere uolentem prohibuerit.
$189. Poena manifesti furti ex
lege Xii tabularum capitalis erat.
nam liber werberatus addicebatur ei
cui furtum fecerat; utrum autem
seruus efficeretur ex addictione, an
adiudicati loco constitueretur, ue-
teres quaerebant. in seruum aeque
uerberatum animadwuertebatur. sed
postea inprobata est asperitas poe-
nae et tam ex serui persona quam
ex liberi quadrupli actio praetoris
edicto constituta est.
$ 190. Nec manifesti furti poena
per legem (X71) tabularum dupli
inrogatur, eamque etiam praetor
conseruat.
$ 191. Concepti et oblati poena
ex lege Xii tabularum tripli esi,
DE FURTIS.
429
$ 185. Simple theft is theft not
detected in the act.
$186. The discovery of stolen
goods, when a person's premises are
searched in the presence of wit-
nesses, makes him liable, even
though innocent of theft, to a
special action for receiving stolen
goods.
$ 187. To introduce stolen goods
is to pass them off to a man, on
whose premises they are discovered,
with the intent that they should be
discovered on his premises rather
than on those of the introducer.
The man on whose premises they
are found may sue the passer off,
though innocent of theft, in an
action for the introduction of stolen
goods.
§ 188. An action for prevention
of search may be brought against
the man who prevents the search of
his premises where stolen goods are
suspected to be conceuled.
$189. The punishment provided
by the law of the Twelve Tables for
theft detected in the commission
was capital; a freeman was first
scourged and then delivered, by
judgment of the magistrate, to the
person from whom he had stolen
(whether made a slave by the de-
livery, or reduced to the condition
of an insolvent judgment debtor,
was an old question); a slave was
also punished by scourging. Later
ages disapproved of the severity of
this punishment, and theft, whether
by a slave or by a freeman, was
punished by the praetorian edict
with fourfold damages.
§ 190. Simple theft is punished
by the law of the Twelve Tables
with double damages, which penalty
the praetor has retained.
§ 191. The possession and intro-
duction of stolen goods are pun-
430
eaque similiter a praetore serwa-
tur.
$ 192. Prohibiti actio quadrupli
est ex edicto praetoris introducta ;
lex autem eo nomine nullam poe-
nam constituit. hoc solum praeci-
pit, ut qui quaerere uelit, nudus
quaerat, lico cinctus, lancem ha-
bens; qui si quid inuenerit, iubet
id lex furtum manifestum esse.
§ 193. Quid sit autem lictum,
quaesitum est. sed uerius esf con-
suti genus esse, quo necessariae
partes tegerentur. quae res [lex
tota] ridicula est. nam qui westi-
tum quaerere prohibet, is et nudum
quaerere prohibitwrus est, eo magis
quod ita quaesita re (et) inuenta
maiori poenae subiciatur. deinde
quod lancem siue ideo haberi iu-
beat, ut manibus occupatis nihil
subiciat, siue ideo ut quod inue-
nen, ibi inponast, neutrum eorum
procedit, si id quod quaeratur, eius
magnitudinis aut naturae sit, ut
neque subici neque ibé inponi pos-
sit. certe non dubitatur, cuius-
cumque materiae sit ea lanx, satis
legi fieri,
$ 194. Propter hoc tamen quod
lex ex ea causa manifestum furtum
esse iubet, sunt qui scribunt fur-
tum manifestum aut lege (?ntellegt)
aut natura: lege id ipsum de quo
loquimur, natura illud de quo su-
perius exposuimus. sed uerius est
natura tantum manifestum furtum
intellegi. neque enim lex facere
potest, ut qui manifestus fur non
DE OBLIGATIONIBUS.
[111. $$ 183-208.
ished by the law of the Twelve
Tables with triple damages, a pen-
alty which the praetor has also
adopted.
$ 192. Prevention of search ren-
ders liable to fourfold damages, &
penalty which the edict of the prae-
tor first ordained. The Twelve
Tables inflicted no penalty for such
an offence, but directed that the
subsequent searcher must be naked,
only wearing a girdle, and carrying
a platter in his hands, and made
the ensuing discovery of stolen
goods a detection of theft in the
commission.
§ 193. What the girdle was, is
doubted, but it seems to have been
a covering for the loins. The whole
enactment of the Twelve Tables is
nugatory, for he that prevents a
man from searching in his clothes
would prevent him from searching
naked, especially as in such a
search the finding of stolen goods
would subject him to a heavier
penalty. Besides, whether the plat-
ter is to be held by the searcher in
order that his hands being engaged
in holding it may not bring any-
thing into the house, or in order
that what is found may be placed
thereupon, neither reason can be
alleged when the thing searched for
is of such a size or nature that it
could not be brought into the house
in the hand, nor placed on the
platter. It is not disputed that a
platter of any material satisfies the
requirement of the Tables.
§ 194. On account of the enact-
ment that & discovery in such a
search is a detection of theft in the
commission, some writers say that
detection in the commission is of
two kinds, legal and natural: legal
detection being detection in such a
search; natural detection, detection
as recently defined. But in truth,
the natural mode of detection in
rr. $$ 183-208. |
sit, manifestus sit, non magis quam
qui omnino fur non eit, fur sit, et
qui adulter aut homicida non sit,
adulter uel homicida sit. at illud
sane lex facere potest, ut proinde
aliquis poena teneatur atque si fur-
tum uel adulterium uel homicidium
admisisset, quamuis nibil eorum
admiserit.
$195. Furtem autem fit non
solum cum quis intercipiendi causa
rem alienam amouet, sed genera-
liter cum quis rem alienam inuito
domino contrectat.
$196. Itaque si quis re quae
apud eum deposita sit utatur, fur-
tum committit. et si quis uten-
dam rem acceperit eamque in alium
usum transtulerit, furti obligatur,
ueluti si quis argentum utendum
acceperit, quasi amicos ad cenam
inuitaturus, et id peregre secum
tulerit, aut si quis equum gestandi
gratia commodatum longius aliquo
duxerit, quod ueteres scripserunt
de eo qui in aciem perduxisset.
$ 197. Placuit tamen eos qui
rebus commodatis aliter uterentur
quam uéendas accepissent, ita fur-
tum committere, si intellegant id
se inuito domino facere, eumque, si
intellexisset, non permissurum ; at
si permissurum credant, extra furti
crimen uideri; optima sane dis-
tinctione, quod furtum sine dolo
malo non committitur,
$198. Sed et si credat aliquis
inuito domino se rem contrectare,
domino autem uolente id fiat, dici-
tur furtum non fieri, unde illud
DE FURTIS.
431
the commission is the only one that
we can allow, for law cannot turn a
thief not detected in the act into a
thief detected in the act, any more
than it can turn à man who is not
a thief into & thief; or make an
adulterer or homicide out of a man
who has not killed or committed
adultery. What law can accom-
plish is this, that a person shall be
subject to a penalty just as if he
had committed theft, adultery, or
homicide, although he have not
committed any of those offences.
§ 195. Theft is not confined to
the carrying away the property
of another with intent of appro-
priation, but embraces all corpo-
ral dealing with the property of
another against the will of the
owner.
§ 196. Thus, to use a thing com-
mitted to one’s keeping as a deposit,
or to put a thing that is lent for
use to a different use than that for
which it was lent, is theft ; to bor-
row plate, for instance, on the
representation that the borrower is
going to entertain his friends, and
then to carry it away into the
country; or to borrow a horse for
a drive, and then to take it out of
the neighbourhood; or, like the man
in the old case, to take it into battle.
$ 197. It is held, however, that
putting a thing lent for use to a
different use than the lender con-
templated is only theft if the bor-
rower knows it to be contrary to
the will of the owner, and that, if
he had notice, he would refuse per-
mission; but if he believes that the
owner would give permission, it is
not theft; and the distinction is
just, for there is no theft without
unlawful intention.
$ 198. To deal with a thing in
the belief that you are acting against
the will of the owner, whereas tle
owner is consenting, is said not to
432
quaesitum [et probatum|] est, cum
Titius seruum meum sollicitaerit,
ut quasdam res mihi subriperet et
ad eum perferret, (et seruus) id
ad me pertulerit, ego, dum uolo
Titium in ipso delicto deprehen-
dere, permiserim seruo quasdam res
ad eum perferre, utrum furti an
serui corrupti iudicio teneatur Ti-
tius mihi, sn neutro. responsum
neutro eum teneri, furti ideo quod
non inuito me res contrectawerit,
serui corrupti ideo quod deterior
seruus factus non est.
$199. Interdum autem etiam
liberorum hominum furtum fit, ue-
luti si quis liberorum nostrorum
qui in potestate nostra sint, siue
etiam uxor quae in manu nostra sit,
siue etiam iudicatus uel auctoratus
meus subreptus fuerit.
$ 200. Aliquando etiam suae rei
quisque furtum committit, ueluti si
debitor rem quam creditori pignori
dedit, subtraxerit, uel si bonae fidei
poseessori rem meam possidenti
subripuerim. unde placuit eum
qui seruum suum quem alius bona
fide possidebat, ad se reuersum
celauerit, furtum committere.
$ 201. Rursus ex diuerso inter-
dum alienas res occupare et usuca-
pere concessum est, nec creditur
furtum fieri, ueluti res hereditarias
quarum heres non est nactus pos-
sessionem, nisi necessarius heres
extet ; nam necessario herede ex-
tante placuit nihil pro herede usu-
capi posse. item debitor rem quam
fiduciae causa creditori mancipaue-
rit aut in iure cesserit, secundum
ea quae in superiore commentario
rettulimus, sine furto possidere et
usucapere potest.
DE OBLIGATIONIBUS.
[rrr. $$ 183-208.
be theft ; whence & question arises,
if Titius solicits my slave to steal
my property, and convey it to him,
and my slave informs me of it, and
I, wishing to detect Titius in flag-
rante delicto, permit my slave to
convey my goods to him; can an
action of theft or for corrupting a
slave be maintained against Titius ?
It has been held that neither action
is maintainable; not theft, because I
consented to his dealing with my pro-
perty; not corruptingaslave, because
the slave resisted the solicitation.
§ 199. A freeman may be the
subject of a theft; for instance, a
child in my power, a wife in my
hand, my insolvent debtor, or my
hired gladiator, if secretly removed
from my control.
§ 200. A man sometimes steals
his own property; for instance, a
debtor who purloins the goods which
he has pledged to a creditor, or a
proprietor who steals his property
from & bona fide possessor; and
accordingly it has been held, that
concealment of one's slave, who,
being possessed in good faith by
another had returned to his owner,
amounted to theft.
$ 201. Conversely, property be-
longing to another may be seized
and converted by usucapion without
committing theft; hereditaments,
for instance, before a successor
has obtained possession, except in
the case of a necessary successor; for
where there is a necessary successor
the first occupant cannot acquire
by usucapion as quasi successor (2
§ 58). Also a mortgagor, having
detention of pruperty mortgaged by
mancipation or surrender in court,
as I mentioned in the preceding
book, may, without committing
theft, repossess it and acquire new
ownership thereof by usucapion
(2 § 59).
mir. §§ 183-208.]
§ 202. Interdum furti tenetur
qui ipse furtum non fecerit, qualis
est cuius ope consilio furtum factum
est. in quo numero est qui nummos
tibi excussit, ut eos alius subriperet,
uel obstitit tibi, ut alius subriperet,
aut owes aut boues tuas fugauit, ut
alius eas exciperet. et hoc ueteres
scripserunt de eo qui panno rubro
fugauit armentum. sed si quid per
lasciuiam et non data opera ut far-
tum committeretur, factum eit,
uidebimus an utilis actio dari de-
beat, cum per legem Aquiliam quae
de damno lata (est), etiam culpa
puniatur.
$ 203. Furti autem actio ei con-
petit cuius interest rem saluam esse,
licet dominus non sit. itaque nec
domino aliter conpetit quam si etus
intersit rem non perire.
$ 204. Vnde constat creditorem
de pignore subrepto furti agere
posse ; adeo quidem, ut quamuis
ipse dominus, id est ipse debitor,
eam rem subripuerit, nihilo minus
creditori conpetat actio furti.
$205. Item si fullo polienda .
curandaue aut sarcinator sarcienda
uestimenta mercede certa acceperit
eaque "furto amiserit, ipse furti
habet actionem, non dominus, quia
cum iudicio locati & fullone aut
sarcinatore suum consequi possit,
&i modo is fullo aut sarcinator rei
praestandae sufficiat; nam si sol-
uendo non est, tunc quia ab eo
dominus swum consequi non potest,
ipsi furti actio conpetit, quia hoc
casu ipsius interest rem saluam esse.
$ 206. Quae de fullone aut sar-
cinatore diximus, eadem transfere-
mus et ad eum cui rem commodaui-
mus. nam ut illi mercedem capi-
DE FORTIS. 433
§ 202. Theft may be chargeable
on & person who is not the perpe-
trator, on him, namely, by whose
aid and abetment a theft is com-
mitted ; to which class belongs the
man who knocks out of your hand
money for another to pick up, or
stands in your way that another
may snatch it, or scatters your sheep
or oxen that another may steal them,
like the man in the old books, who
waved a red cloth to frighten a
herd. If the same thing were done
as a frolic, without the intention of
assisting a theft, & modified or prae-
torian form of action may be main-
tainable, for the Aquilian law re-
lating to damage makes even care-
lessness penal.
$ 203. The action of theft is
maintainable by the person in-
terested in the preservation of the
property, who need not be the
owner; and even the owner cannot
maintain it unless he suffers detri-
ment from the loss.
§ 204. Hence when a pawn is
stolen, the pawnee can sue, and
even the owner or pawnor who
steals a pawn is suable for theft by
the pawnee.
§ 205. So if clothes are delivered
to be cleaned or finished or mended
for a certain remuneration, and then
are stolen, the fuller or tailor has
the action, and not the owner ; for
the owner is not prejudiced by the
loss, having his action of letting
against the bailee to recover the
value; supposing always, that the
bailee is able to make the loss good.
If the bailee is insolvent, the owner
cannot recover out of him, and can
maintain an action against the thief ;
being, in this hypothesis, interested
in the loss of the property.
§ 206. What has been said of the
fuller and tailor applies to the bor-
rower; for, as the remuneration
they receive makes them responsible
Ff
434 DE OBLIGATIONIBUS.
endo custodiam praestant, ita hic
quoque utendi commodum perci-
piendo similiter necesse habet cus-
todiam praestare.
§ 207. Sed is apud quem res de-
posita est, custodiam non praestat,
tantumque in eo obnoxius est, si
quid ipse dolo (malo) fecerit. qua
de causa (8i) res ei subrepta fuerit,
quia restituendae eius nomine de-
posit non tenetur, nec ob id eius
interest rem saluam esse, furti [ita-
que] agere non potest, sed ea actio
domino conpetit.
$ 208. In summa sciendum est
quaesitum esse an inpubes rem
alienam amouendo furtum faciat.
plerisque placet, quia furtum ex
adfectu consistit, ita demum obli-
gari eo crimine inpuberem, si
proximus pubertati sit et ob id
intellegat se delinquere.
[mmr $$ 183-208.
for custody, so the advantage the
borrower derives from the use of an
article requires him to keep it safely
at his peril.
§ 207. Asa depositary is not an-
swerable for the safe-keeping of the
thing deposited, but only for fraud,
and, if it is stolen, is not com-
pellable to make restitution by
action of deposit, he is not inter-
ested in its loss ; and therefore the
action of theft is only maintainable
by the depositor,
§ 208. Finally, it is a question
whether a child below the age of
puberty, who carries away the pro-
perty of another, commits a theft;
and most agree that as theft de-
pends on intention, obligation by
theft is not incurred unless the
child, being near to puberty, under-
stands its delinquency.
Theft in modern systems of jurisprudence is a crime, that is,
belongs to the penal or criminal code.
In Roman law, as in other
early systems, it is a private injury, and treated as a subject of the
civil code. This was confirmed by the law of the Twelve Tables,
which allowed a compromise or composition for theft, that is,
allowed the obligation (liability to the legal sanction) thereby
engendered to be extinguished by private convention between the
party wronged, and the wrongdoer, Dig. 2, 14, 7 § 14.
$184. Aulus Gellius gives a fragment of Sabinus which com-
bines the first and third definition of furtum manifestum. Mani-
festum autem furtum est, ut ait Masurius, quod deprehenditur
dum fit. Faciendi finis est, cum perlatum est quo ferri coeperat,
9, 18, 1. ‘Manifest theft is that which is detected in the act.
The act is finished when the removal of the goods to the place
intended is completed. Justinian confirms the third definition,
Inst. 4, 1, 3.
$ 189, The reason why furtum manifestum was subjected to a
heavier penalty than furtum nec manifestum was not because the
barbarous legislator supposed that detection in the act was an
aggravation of the offence, but because he wished, by the amplitude
of the legal remedy offered, to induce the aggrieved party not to
m. $$ 183-208.] DE FURTIS. 455
take the law into his own hands and inflic summary vengeance on
the offender, particularly as it was lawful to kill à nocturnal thief,
or one who during the day defended himself with a weapon. In
the infancy of society it is an important object to the legislator to
induce an injured person to have recourse to the public tribunals
instead of righting himself, that is to say, constituting himself both
lawgiver and judge.
That such was really the motive of the legislator we have historic
evidence in the declaration of Rotharis, ruler of the Langobards,
A.D. 648. He gives the relatives of the slain their election be-
tween the primitive vengeance for blood (feud or vendetta), and a
composition or pecuniary fine (wergeld or poena) to be recovered
by action before the public tribunals. He says that he fixes a high
fine in order to induce plaintiffs to forego their right of feud ; and
implies that he would gladly have abolished the right of feud or
private war, but felt that it was too deeply rooted in the habits of
his tribe to be extirpated by legislation. Bethmann-Hollweg, Der
Germ. Civ. Process, $60.
This writer supposes, Der Róm. C. P., $ 96, that the praetorian
action Furti manifesti had a Fictitious formula, 4 $ 82, and suggests
the following :
Demonstratio: Quod Numerius Negidius Aulo Agerio furtum
manifestum fecit paterae aureae,
Fictio: Si ob eam rem Numerium Negidium ex lege verberari
itemque Aulo Agerio addici oporteret,
Condemnatio : Quanti ea res fuit, tantae pecuniae, judex, Nume-
rum Negidium Aulo Agerio quadruplum condemnato: Si non
paret, absolvito. ;
According to Gellius a slave after having been scourged was
thrown from the Tarpeian rock, and some writers think that Gaius
stated this fact in the above passage.
§ 193. We must distinguish between furtum conceptum and
furtum lance et licio conceptum. Ea quoque furta quae per lancem
liciumque concepta essent, proinde ac si manifesta forent, vindica-
verunt, Gellius, 11, 18, 9. ‘ Possession of stolen goods discovered
on search with the platter and girdle was punished as theft de-
tected in the act. Cf. Inst. 4, 1, 4.
Traces of the word ‘conceptum’ occur in a fragment of the
Twelve Tables: Tignum junctum aedibus vineaeque et concapet
ne solvito, ‘ Timber built into a house or vineyard of another man
Ff
436 DE OBLIGATIONIBUS. [1rr. $$ 183-208.
and discovered there by the owner must not be severed:' where
et concapet represents either et conceptum or qui concipiet.
The search with a platter and girdle was probably a custom
derived from Greece, for a similar formality is described by Plato,
Leges, 12, 7.
In the later period of Roman law, as in modern Europe, the
search for stolen goods was not conducted by the private party but
by public officers. In England the object is effected by a search
warrant. Upon the information on oath that a party has probable
cause to suspect that his goods have been stolen, and are concealed
in & certain dwelling-house, and on his showing the cause of his
suspicion, a justice of the peace may grant a warrant authorizing to
enter and search for the said goods, and to attach the goods and the
party in whose custody they are found, and bring them before him,
that he may give an account how he came by them, and be dealt
with according to law. The warrant is directed to a constable or
other publie officer and not to any private person, though it is
proper that the party complaining should be present and assistant
because he knows his goods. As touching the party that had
custody of the goods, if they were stolen, but not by him but by
another that sold and delivered them to him (furtum oblatum),
if it appear that he was ignorant that they were stolen, he may
be discharged as an offender and bound over to give evidence as
a witness against him that sold them.
§ 195. The same definition of theft is given by Paulus. Fur
est qui dolo malo rem alienam contrectat, Sent. R. 2, 81, 1. ‘A
thief is he who with evil intention handles (lifts, moves, touches,)
the" property of another. Justinian gives a different definition.
Furtum est contrectatio rei fraudulosa, lucri faciendi causa vel
ipsius rei, vel etiam usus ejus possessionisve, Inst. 4, 1, 1. ‘ Theft
is handling a thing with fraudulent intention to appropriate the
property, use, or possession."
It may be observed that Justinian does not say with Paulus,
rei alienae, because a man may steal his own property, as when a
pawnor steals from a pawnee or a proprietor from a usufructuary.
So, by English law, to take a man's own goods out of the hands
of a bailee, if the taking have the effect of charging the bailee,
is larceny. The usus of a thing is stolen when the proprietor
steals from the usufructuary, or when a pawnee unlawfully uses a
pawn. Si creditor pignore utatur, furtum committit, Inst. 4, 1, 6.
ri. §§ 183-208.] DE FURTIS. 497
Possessio is appropriated when a pawn is stolen by the pawnor,
or when the depositary uses & deposit, or the borrower pute the
thing borrowed to an unauthorized use. In Roman law the
depositary and borrower, unlike the pawnee, have not possession
but merely detention (see 4 $ 153), and the same unlawful act
(contrectatio) which amounts to theft converts their detention into
possession.
In English law larceny is defined to be the unlawful taking and
earrying away of things personal with intent to deprive the right
owner of the same and to make them the property of the taker.
To constitute larceny the original taking of possession must be
unlawful: therefore, if the owner deliver his property to & person
in trust, the subsequent conversion by the bailee, though an offence
and a breach of faith, is not larceny, because the original taking
was lawful There are, however, two exceptions to this rule which
deserve notice. It is larceny if the delivery was obtained by fraud,
i.e. with an original design and pre-arranged plan to deprive the
owner of his property and convert it to the use of the taker. "The
possession is then unlawful in its inception. Again, if delivery
does not divest the owner of the legal possession, conversion by the
taker is larceny. In this respect a servant (e. g. a shepherd, carter,
porter, butler, clerk,) is to be distinguished from a bailee, for the
servant is regarded as not possessing, but merely the instrument
of the owner’s possession. (See Pollock and Wright, Possession in
the Common Law Pt. III.)
As far as Roman law is concerned this principle would make the
bailee, as well as the servant, capable of larceny, for in Roman law
the bailee (except in the case of pignus) has not possession, but
merely detention. The fact, however, that the pawnee, who has
lawful possession, is guilty of theft if he make use of the pawn,
shows that in Roman law an unlawful inception of possession is not
an essential element in the definition of furtum.
§ 198. Justinian decided that the attempt to corrupt a slave was
as criminal as his actual corruption, and made the offender liable to
be sued for theft and for corrupting a slave, Inst. 4, 1, 8.
§ 201. Usucapion of the property of a voluntary successor, and
usureceptio, or usucapion of the property of a mortgagee, have been
mentioned in the preceding book. See 2 §§ 52-60.
§ 202. A person who is present aiding and abetting when an
offence is committed but is not the actual perpetrator is called, in
438 DE OBLIGATIONIBUS. [nrr. $$ 183-208.
English law, a principal in the second degree. He who procures
or abets another to commit an offence but is absent at the time
of the commission is called an accessary before the fact. Their
punishment is usually the same as that of the principal in the
first degree. An accessary after the fact is one who, knowing an
offence to have been committed by another, receives, harbours, or
assists the offender. For an explanation of the distinction between
actio legis aquiliae directa and utilis see $ 219 comm.
$ 203. When a sale is complete, property does not, by Roman
law, pass to the vendee before delivery, although the thing sold
is forthwith at the risks of the vendee. If it is stolen before
delivery, in spite of the rule that the action of theft is maintainable
by the person interested, the vendee cannot sue in his own name,
but the vendor is compellable to cede his actions and the vendee
sues in the name of the vendor, Dig. 47, 2, 14 61. From this we
may infer the rule that to maintain the action of theft, besides
interest in the loss, & plaintiff must have had either property or
detention, both of which are wanting to the vendee in the case
supposed.
The quadruple and double daraages for furtum manifestum and
nec manifestum were purely penal. The owner could further re-
cover restitution of thing stolen by a real action (vindicatio)
or its equivalent in a personal action (condictio furtiva), Inst.
4, 1, 20. The granting of a personal action in this case, with an
intentio declaring that the thief was bound to convey the property
(dare oportere), was anomalous, because the property of thing stolen
was not in the thief but in the owner, 4 § 4.
If the thing stolen had been destroyed, or if, being money, it
had been spent or mixed with money of the thief, the property of
the plaintiff would have been extinguished and condictio would
be a suitable action. If the property existed in the hands of the
thief vindicatio was the proper action. The object of the legis-
lator in allowing the plaintiff in any case to sue by condictio was to
relieve him from the necessity of ascertaining whether his property
was safe or had been consumed. If we ask why, instead of using
the intentio, Si paret dare oportere, 4 $ 4, which might be inconsis-
tent with the truth, the plaintiff did not use the formula, Quidquid
paret dare facere oportere, which, as including compensation or simple
restitution of possession, would always be consistent with truth ; the
answer is probably what Savigny has suggested, namely, the inten-
ri. § 209.] DE VI BONORUM RAPTORUM. 439
tion of the legislator to subject the defendant to the sponsio poenalis,
the additional forfeiture of a third of the sum in litigation. It is
true that this is only mentioned as incidental to a condictio for
peeunia certa credita, 4 § 171, but the penalty may have also
been recoverable in a claim for certain money stolen (condictio
furtiva).
Bethmann-Hollweg, § 95, proposes the following formula for
the actio furti nec manifesti :
Demonstratio: Quod Numerius Negidius Aulo Agerio furtum
fecit paterae aureae,
Intentio: Si paret ob eam rem Numerium Negidium Aulo Agerio
pro fure damnum decidere oportere (4 § 37),
Condemnatio: Quanti paret eam rem fuisse tantae pecuniae
duplum, judex, Numerium Negidium Aulo Agerio condemna: Si
non paret, absolve.
The plaintiff in theft had the option of proceeding by civil action
or by eriminal prosecution, and Ulpian informs us that the latter
was the usual course, Dig. 47, 2, 98.
DE VI BONORUM BAPTORUM.
$ 209. Qui res alienas rapit, tene-
tur etiam furti. quis enim magis
alienam rem inuito domino contrec-
tat quam qui (v?) rapit! itaque
recte dictum est eum improbum
furem esse. sed propriam actionem
eius delicti nomine praetor intro-
duxit, quae appellatur ui bonorum
raptorum, et est intra annum quad-
rupli [actio], post annum simpli.
quae actio utilis est, etsi quis unum
rem, licet, minimam, rapuerit.
$ 209. Rapine or robbery is
chargeable as theft, for who more
handles the property of another
against the will of the owner than
the robber? who has been well
denominated an audacious thief.
However, as a special remedy for
this offence the praetor has intro-
duced the action for rapine with
violence; which may be brought
within a year for four times the
value, after a year for simple
damages; and which lies when
only a single thing of the slightest
value has been taken with violence.
Keller, Der Rém. Civil Process § 33, quoted by Bethmann-
Hollweg, § 96, gives the following formula: Recuperatores sunto:
Quantae pecuniae paret dolo malo Numerii Negidii vi hominibus
armatis coactisve damnum datum esse. Aulo Agerio bonave rapta,
dumtaxat sestertium tot millium, tantae pecuniae quadruplum,
Recuperatores, Numerium Negidium Aulo Agerio condemnate: si
440 . DE OBLIGATIONIBUS. [11. $ 209.
non paret, absolvite. The party aggrieved might either proceed by
civil action or by criminal prosecution under the lex Julia de vi
publica et privata. This law, enacted either by Augustus or by
Julius Caesar, made the criminal guilty of public or armed violence,
liable to deportation; the criminal guilty of private or unarmed
violence, to confiscation of a third of his goods, Inst. 4, 18, 8.
The quadruple damages in the civil action of rapine were not
purely penal as in the action of furtum manifestum, but included
the restitution of the property or its value, 4 $ 8, cf. Inst. Just. 4,
2 pr. The penal damages for rapine were therefore only three times
the value of the goods plundered, that is, less than the damages in
furtum manifestum. If, however, the robber was taken in the act,
he was chargeable, as Gaius explains, with furtum manifestum.
The lex Cornelia repetundarum passed by the dictator Sylla,
B.C. 81, instituting a criminal action against governors of provinces
guilty of extortion : the formula Octaviana or actio quod Metus causa,
introduced by the praetor Octavius, father of Augustus, B.c. 79: and
the actio Vi bonorum raptorum, introduced by the praetor Lucullus,
B.C. 77, all fall within the space of four years and indicate the
lawlessness generated by the civil wars in the time of Sylla.
Robbery, like theft, requires dolus malus, that is, criminal inten-
tion. If then a man, believing himself to be rightful owner,
violently invaded lands or violently seized movable goods, he was
not guilty of robbery; but, by a constitution of the emperors
Valentinian, Theodosius, and Arcadius, enacted a.p. 389, in order to
repress violence, and deter people from taking the law into their
own hands, the offender, if mghtful owner, forfeited the property
to the person dispossessed ; if not rightful owner, was condemned,
besides restitution of possession, to forfeit the value of the property,
Cod. 8, 4, 7. This constitution increased the civil penalty recover-
able for violent dispossession by the interdict unde vi, 4 § 154.
By the interdict unde vi no penalty was originally recoverable for
violent, but unarmed, dispossession of one whose own possession
was tainted by an origin, violent, clandestine, or permissive: and
for either armed or unarmed dispossession the penalty, as far as the
property in question was concerned, was only restitution of pos-
session, By the constitution of the three emperors the civil penalty
of all violent disseisin was loss not only of possession but of property ;
and subsequently to this constitution, the interdict unde vi ceased to
make a distinction between armed and unarmed dispossession.
m. $$ 210-219.] DE LEGE AQUILIA. 441
This constitution may be regarded as the final blow struck by the
Roman legislator at the archaic form of remedial procedure— private
violence or self-redress. In archaic society, if society it could
be called, before the establishment of central authority, publie
tribunals, and police or executive functionaries, such was the only
possible means of redress; and such redress was recognized and
permitted by primeval law, if the sentiments of the tribe at such a
period can be called by the name of law.
Among the German races the disorder implied by the toleration
of Feud or private war was gradually mitigated by the introduction
of certain Truces, or temporary or local Peaces: the Truce of the
King, prohibiting private war within the precincts of the royal
residence: the Truce of the Church, giving to the fugitive wrong-
doer an asylum in the sanctuary: the Truce of the Assembly, ex-
cluding the prosecution of feuds from the place where the Hundred
was assembled: and the Truce of the Town, Village, or House, pro-
tecting the offender from homicidal attack within these limits.
At some period, too, society interposed and offered to act as arbi-
trator, and to procure for the aggrieved party satisfaction of the
wrong he had endured. Accordingly all injuries were rated at a
certain tariff, and a person who had suffered aggression had the
option whether he should avenge himself or, in commutation of his
right of Feud, accept the fine fixed by this tariff, and awarded by a
tribunal of his countrymen. This mediation of the community,
which the plaintiff could accept or decline at his discretion, was the
ongin of actiones poenales, the poena being the inducement offered
to the plaintiff to make him adopt the more peaceful course, In
Saxon law the alternative offered to the aggressor was expressed by
the maxim Biege spere of side other bere: * Buy the spear off the
side or bear it:’ i.e. make atonement or be liable to Feud. (Kemble.)
Finally the Peace of the King, proclaimed at each coronation,
became universal: the state undertook the decision and composition
of all quarrels ; and private war at all times and in all places was
interdicted and superseded by recourse to the public judicature.
DE LEGE AQUILIA.
$ 210. Damniiniuriae actio con- — $210. Damage unlawfully caused
stituitur per legem Aquiliam, cuius is actionable under the lex Aquilia,
primo capite cautum est, (ut) si whose first chapter provides, that
quis hominem alienum alienamue if a slave of another man, or a
quadrupedem quae pecudum numero quadruped of his cattle, be unlaw-
442
sit, iniuria occiderit, quanti ea res
in eo anno plurimi fuerit, tantum
domino dare daninetur.
$ 211. Jniuria autem occidere
intellegitur, cuius dolo aut culpa
id acciderit; nec ulla alia lege
damnum quod sine iniuria datur,
reprehenditur; itaque inpunitus
est qui sine culpa et dolo malo
casu quodam damnum committit.
$ 212. Nec solum corpus in ac-
tione huius legis aestimatur; sed
sane si seruo occiso plus dominus
capiat damni quam pretium serui
svt, id quoque aestimatur, ueluti si
seruus meus ab aliquo heres insti-
tutus antequam iussu meo heredi-
tatem cerneret, occisus fuerit; non
enim tantum ipsius pretium aesti-
matur, sed et hereditatis &missae
quantitas. item si ex gemellis uel
ex comoedis uel ex symphoniacis
unus occisus fuerit, non solum oc-
cisi fit aestimatio, sed eo amplius
(id) quoque conputatur quod
ceteri qui supersunt, depretiati sent.
idem iuris est etiam si ex pari
mularum unam uel etiam ex quad-
rigis e quorum unum occiderit.
$ 213. Cuius autem seruus oc-
cisus est, is liberum arbitrium habet
uel capitali crimine reum facere eum
qui occiderit, uel hac lege damnum
persequi.
$ 214. Quod autem adiectum est
in hac lege.QVANTI IN EO ANNO
PLVRIMI EA RES FVERIT, illud efficit,
si clodum puta aut luscum seruum
occiderit, qui in eo anno integer
(fuerit, ut non quanti fuerit, cum
occideretur, sed quanti in eo anno
plurimi) fuerit, aestimatio fiat ; quo
fit, ut quis plus interdum consequa-
tur quam ei damnum datum est.
§ 215. Capite secundo (aduersus)
DE OBLIGATIONIBUS.
[rrr. $$ 210—219.
fully slain, whatever within & year
was the highest value thereof, that
&mount the offender shall pay to
the owner.
$ 211. Unlawful slaying means
slaying by intention or negligence ;
for it is only disobedience to law
that is punished, and in the absence
of intention and negligence there
is no penalty for fortuitous damage.
$ 212. It is not only the body of
the slave or animal slain that is ap-
praised, but if the death of & slave
occasion to the owner the loss of |
anything in sddition to his price,
this loss is further estimated ; for
instance, if my slave has been insti-
tuted somebody's heir, and before
by my order he has signified his
acceptance, he is slain, valuation is
made not only of his body but also
of the inheritance I have missed ;
or if one of two twins, or one of a
company of players, or one of a
band of musicians is slain, an esti-
mate is made not only of his value
but also of the extent to which the
remainder are depreciated. The
same holds if one of a pair of
mules, or one of four chariot horses
is killed.
§ 213. The owner whose slave
is killed has the option of accusing
the homicide of a capital crime or
of suing him under this law for
damages.
§ 214. From the words of this
law, ‘ Whatever within a year was
the highest value thereof,’ it follows
that if a slave was lame or blind of
one eye when he was slain, but had
been sound within a year, as it is
not his value at the time of his
death but his highest value within
& year that is appraised, a plaintiff
will sometimes recover more than
the amount of the loss he has sus-
tained.
§ 215. By the second chapter an
mir. $$ 210-219.]
adstipulatorem qui pecuniam in
fraudem stipulatoris acceptam fece-
rit, quanti ea res est, tanti actio
constituitur.
$°216. Qua et ipsa parte legis
damni nomine actionem introduci
manifestum est. sed id caueri non
fuit necessarium, cum actio mandati
ad eam rem sufficeret; nisi quod ea
lege aduersus infitiantem in duplum
agitur.
$ 217. Capite tertio de omni ce-
tero damno cauetur. itaque si quis
seruum uel eam quadrupedem quae
pecudum (nwmero est, uulnerauerit,
siue eam quadrupedem quae pecu-
dum) numero non est, ueluti canem,
aut feram bestiam, uelut ursum, leo-
nem, uulnerauerit uel occiderit, hoc
capite actio constituitur. in ceteris
quoque animalibus, item in omni-
bus rebus quae anima carent, dam-
num iniuria datum hac parte uin-
dicatur. si quid enim ustum aut
ruptum aut fractum ( fuerit), actio
hoc capite constituitur, quamquam
potuerit sola rupti appellatio in
omnes istas causas sufficere; ruptum
(enim intellegitur quod quoquo modo
corruptum) est. unde non solum
usta [aut rupta] aut fracta, sed
etiam scissa et conlisa et effusa et
quoquo modo uitiata aut perempta
atque deteriora facta hoc uerbo con-
tinentur.
§ 218. Hoc tamen capite non
quanti in eo anno, sed quanti in
diebus XXX proxtmis ea res fuerit,
damnatur is qui damnum dederit.
ac ne PLVRIMI quidem uerbum adi-
citur. et ideo quidam putauerunt
liberum esse iudici ad id tempus ex
diebus xxx aestimationem redigere,
quo plurimi res fuerit, uel ad id quo
minoris fuerit. sed Sabino placuit
proinde habendum ac si etiam hac
perte PLvRIMI uerbum adiectum
esset ; nam legis latorem conten-
DE LEGE AQUILIA,
443
adstipulator who defrauds a prin-
cipal covenantee by releasing the
covenantor can be sued for the
amount of the loss occasioned.
§ 216. In this chapter, as well
as in the others, damage is made a
ground of action, though here the
provision was unnecessary, because
the action of Agency would give a
sufficient remedy, except that the
lex Aquilia, when the facts are tra-
versed, gives double damages [and
Mandate was not yet invented }.
$ 217. The third chapter makes
provision for all other damage.
Therefore if a slave, or & quadruped
included under the name of cattle,
is wounded, or if a quadruped not
included under the name of cattle,
as a dog, or a wild beast, a bear or
lion, is wounded or is killed, in this
chapter an action is provided: or
if other animals or things inanimate
are unlawfully damaged, this chapter
imposes a penalty, for all burning,
breaking, crushing, is herein made
actionable: and indeed the single
word ‘breaking’ covers all these
offences, for breaking denotes every
kind of injury ; and not only burn-
ing, breaking, crushing, but any
cutting, bruising, spilling, vitiating
in any way, destroying, or deterior-
ating, is hereby denominated.
§ 218. In this chapter it is not
the value which the thing had with-
in a year, but which it had within
the last thirty days, that is charge-
able on the author of the mischief,
and it is not expressly the highest
value. Hence some of the other
school have held that it was left
to the discretion of the judex
whether the damages should be
measured by the highest value
or by any lower value which the
thing may have had within the
444
tum fuisse, (quod prima parte eo
uerbo usus esset.
$ 219. Ceterum) placuit ita de-
mum ex ista lege actionem esse, si
quis corpore suo damnum dederit ;
tdeoque alio modo damno dato utiles
actiones dantur, ueluti si quis
alienum hominem aw pecudem in-
cluserit et fame necauerit, aut
iumentum tam uehementer egerit,
ut rumperetur ; item & quis alieno
seruo persuaserit, ut in arborem as-
cenderet uel in puteum descenderet,
et ts ascendendo aut descendendo
ceciderit (e£) aut mortuus fuerit
aut aliqua parte corporis laesus sit ;
sed si quis alienum seruum de ponte
aut ripa in flumen proiecerit et is
suffocatus fuerit, corpore suo dam-
num dedisse eo quod proiecerit,
non difficiliter intellegi potest.
DE OBLIGATIONIBUS.
[nr. $$ 210-219.
last thirty days: but Sabinus held
that the law must be interpreted as
if it contained the word ‘ highest,’
the legislator having thought 1t
sufficient to use this word in*the
first chapter.
$ 219. It is held that an action
under this statute only lies when
the body of the offender is the in-
strument of mischief; for any other
mode of occasioning loss a modified
action must be brought: for in-
stance, if a slave or quadruped is
shut up and starved to death, or a
horse is foundered by hard driving,
or a slave is persuaded to climb a
tree or descend a well, and in
climbing or descending falls and is
killed or hurt. But if a slave is
pushed off a bridge or bank into a
river and there drowned, the body
of the person who pushed him may
fairly be held to have caused his
death.
§ 210. The lex Aquilia was a plebiscite carried by a tribune
ealled Aquilius, according to Theophilus, at one of the secessions of
the plebs, probably at the secession to the Janiculum, B.c. 287, on
which same occasion the lex Hortensia was carried, making the
plebiscites binding on the patricians. (See Grueber, Lex Aquilia,
p. 183.)
The words of the first clause are preserved in the Digest: Qui
servum servamve alenum alienamve, quadrupedemve pecudem
injuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare
domino damnas esto, Dig. 9, 2, 2. ‘If a slave, male or female,
of another person, or a quadruped of his cattle is unlawfully slain,
whatever was the highest value it bore in the previous year, such
sum shall be due as a judgment debt from the slayer to the owner.’
Cattle are animals that feed in flocks or herds, and include horses,
mules, asses, oxen, sheep, goats, and swine, 4 § 171.
§ 212. The words Quanti ea res est, erit, or fuit occur im the
eondemnatio or last part of a formula when a defendant is bound to
indemnify a plaintiff, that is, to pay him a certain value. These
words have two meanings: they mean either (1) the value of
ut. $$ 210-219. ] DE LEGE AQUILIA. 445
a thing to the world in general, i.e. its selling value or market
value, called verum rei pretium, or vera rei aestimatio; or (2) its
value to this particular plaintiff, id quod interest actoris, or utilitas
actoris; a value which might be either less or greater than the
market value. :
Where a claim is founded on a contract, say a contract of insur-
ance against some kind of loss, the market value of the thing lost is
intended ; and the loss of the plaintiff does not include the damages
he has indirectly experienced (damnum indirectum) nor the gain he
has failed to realize (lucrum cessans). When a claim of indemnifi-
eation is founded on delict or on dolus or culpa (dolose or culpose
breaeh of contract), the plaintiff's interest is the measure of the
indemnity to be paid, and includes not only the immediate damage
that he has suffered, but also the mediate, when it was certain and
eapable of being foreseen; and not only the positive loss which he
has suffered but also the gain which he has been hindered from
realizing. If a creditor has been kept out of a sum of money, he
will at least be entitled to the current rate of interest: but this is
not the limit of his claim, if he can prove that the current rate of
Interest is insufficient to cover the specific disadvantage he has
suffered from the Mora of his debtor.
The plaintiff's interest is the measure of the damages he recovers
by the Interdicte Uti possidetis, Utrubi, and Unde vi; as it is in
all actions founded on delinquency. The actio vi bonorum raptorum,
however, is an exception to the rule. Here, in consequence, probably,
of the peculiar wording of the edict, the measure of damages, the
simplum or unit to be quadrupled, is not the plaintiff’s interest but
the market value, Dig. 47, 8, 2, § 18, Savigny, System, Appendix 12.
Instances of indirect damages due to the act or omission of a
defendant, are: the depreciation of the remaining horses of a team
when one has been killed: the penal sum which a plaintiff is liable
to pay from inability to fulfil another engagement in consequence
of the default of the defendant: the sale of goods mortgaged by the
plaintiff as security for another engagement which he cannot fulfil
in consequence of the default of the defendant: the downfall of a
house in consequence of the rottenness of the timber supplied by the
defendant: the infection and extermination of a whole herd of cattle
in consequence of a diseased beast being sold by the defendant.
Although in respect of computation claims of indemnity founded
on breach of contract, whether dolose or culpose, stand on the same
446 DE OBLIGATIONIBUS. [m. $$ 210—219.
footing as claims founded on delict; yet an important distinction
was introduced by Justinian, who enacted that in the former case
the damages recoverable by this computation of lucrum cessans and
damnum indirectum should not exceed the double of the immediate
value, hoc quod interest dupli quantitatem minime excedere, Cod. 7,
47 ; but left claims founded on delict without any similar limitation.
In claims founded on breach of contract we may distinguish two
obligations: the primary obligation as defined by the promise of the
contractor, and what we have called, 6$ 88, 89, comm., the secondary
or sanctioning obligation produced by the non-fulfilment of the
promise. According to the nature of the contract, this non-ful-
filment will be either the non-performance of some service; or the
non-delivery of some goods, movable or immovable; or non-delivery
at the covenanted time or eovenanted place; or negligent custody
and consequent deterioration or destruction of some article deposited
by the plaintiff; or eviction of the plaintiff from some property
transferred to him by the defendant ; or any other omission or non-
feasance. The secondary obligation of a defendant may be divided
into two portions, one corresponding to the immediate value to the
plaintiff of the fulfilment of the primary obligation, the other
corresponding to his mediate or indirect losses occasioned by its
non-fulfilment. 'The first portion may be regarded as principal, the
second as accessory. Similarly the active obligation or claim of
the plaintiff may be divided into two parts, principal and accessory.
By the enactment of Justinian, in an action founded on contract, the
accessory claim can never exceed the principal, or, in other words,
the total claim of the plaintiff can never exceed in amount twice the
value of his principal claim. In obligations arising from delict
there is no primary obligation or principal claim capable of furnish-
ing a corresponding unit of measurement, The primary obligation
of the defendant is here a necessity of abstention which is not
called by the Romans an obligation: and the primary right of the
plaintiff is a real right, a mght against all the world to freedom
from molestation ; which real right is not so definite or capable of
exact valuation or appreciation as a personal claim. Accordingly the
sanctioning right of the plaintiff in this case is left by Justinian
without limitation or maximum ; and the judex is directed to assess
the amount of whatever damage the plaintiff has actually incurred.
The enactment of Justinian was probably suggested by the
stipulatio duplae annexed to contracts of sale, whereby in case of
mu. §§ 210-219.] CONSEQUENTIAL DAMAGES. 447
eviction the purchaser was entitled to recover from the vendor
twice the purchase-money. Vangerow, § 571.
§ 218. The owner of a murdered slave both had a civil remedy
by the lex Aquilia, and could prosecute criminally under the lex
Cornelia de sicariis, passed in the dictatorship of Sylla, ».c. 80.
§ 215. The lex Aquilia, like many other Roman laws, combined
heterogeneous dispositions. The first and third chapters contain
remedies for destruction of property, or jus in rem, that is, the
injury of what is called in English law, a chose in possession; the
second chapter contains a remedy for the destruction of an obliga-
tion, or jus in personam, that is, the injury of what is called in
English law, a chose in action. The power of one promisee, the
adstipulator, to extinguish by acceptilation the right of the other
promisee, the principal stipulator, was a consequence of their
Correality, § 110, comm.
§ 217. The terms of the third chapter are preserved in the
Digest: Ceterarum rerum, praeter hominem et pecudem occisos,
8) quis alteri damnum faxit, quod usserit, fregerit, ruperit injuria,
quanti ea res fuit in diebus triginta proximis, tantum aes domino
dare damnas esto, Dig. 9, 2, 27 $ 5. * For property, other than
slave or cattle slain, damaged by burning, breaking, crushing,
unlawfully, the value it bore in the thirty days preceding shall be
due as a judgment debt from the offender to the owner.’
§ 219. An action founded on the text of a law was called actio
directa, an action not founded on the very text of the law, but
granted by the praetor in the exercise of his judicial authority in
circumstances which, though different, are similar to those which
founded the direct action, was called actio utilis. The direct Aquilian
action could only be brought by the owner (dominus) and when
damage was immediately caused by a body to a body. If the
damage was not caused by a body, or not by immediate contact,
only the actio utilis could be brought. An actio utilis was brought
in the following cases :
(1) When the Aquilian remedy was given to a person who was not
owner but who had a jus in re aliena or was bonae fidei possessor.
(2) If the damage was not caused by a body, or not by immediate
contact (damnum corpore corpori datum).
(3) In a case of damage where neither the agent nor the patient
was a body.
(4) In a case of injury to a freeman,
448 DE OBLIGATIONIBUS. [nr. $$ 210-219.
There were three varieties of actio utilis:
(1) actio fictitia, 4 $$ 84-38;
(2) actions in which there was a variation in the persons named
in the condemnatio from those previously named in the intentio, as
in formula Rutiliana, 4 $ 85;
(3) actio in factum concepta, 4 $6 45-47.
It is probable that the utilis actio legis Aquiliae was generally in
the form of actio in factum concepta, though the actio fictitia in jus
concepta was sometimes used. Cf. 4 § 37.
The statement in the corresponding passage of the Institutes (4, 8,
16) that the actio in factum is to be distinguished from the actio
utilis legis Aquiliae is probably erroneous. There is no trace of such
a distinction in Gaius, and in the Digest the term actio in factum
is used in all cases of extension of the statute. It is to be re-
membered that at the time of the compilation of the Institutes the
formulary procedure, to which the terms actio utilis and actio in
factum refer, had long ceased to be the practice. (Grueber, Lex
Aquilia, pp. 199-208.)
The mode of growth of Roman law and the relation between
directa Aquilia and utilis Aquilia may be illustrated by similar
phenomena in English law, and the relation between the two forms
of action called Trespass and Trespass on the Case. Trespass, which
lies for injury to real or personal property or to the person, accom-
panied with violence, has a more extensive application than directa
Aquilia, but viewed only as redressing injuries to personal property,
is nearly coextensive in its range. The original scheme of actions,
devised in comparatively barbarous times, contained no remedy for
injuries where there is no act done but only a culpable omission,
or where the act is not immediately injurious, but only by conse-
quence or collaterally, or where the idea of force is inapplicable
because the subject matter is not corporeal or tangible, although
the injury may be by act direct and immediate in its operation.
To supply such deficiencies the statute of Westminster, 18 Edward I,
had directed the clerks in chancery to frame new writs whenever
the old scheme of writs contained no remedy for a wrong resem-
bling in its features other wrongs for which a remedy was provided.
Accordingly, a new writ of Trespass on the Case was framed upon
the analogy of the old form of Trespass (confer, ad exemplum
institoriae, § 162 comm.) applying to cases where the injury is not
immediate, or the subject affected is not corporeal, or the agency is
in. $$ 220-225. ] DE INIURIIS. 449
not bodily force. What Edward I. directed to be done by the
elerks in chancery, and what was done by the introduction of the
action of Trespass on the Case, was exactly analogous to what the
praetors did when, in virtue of their judicial authority, they sup-
plemented the civil law by the introduction of actiones fictitiae and
actiones in factum. In respect of torts to personal property, the
latter have nearly the same sphere as Trespass on the Case. The
innovations of the praetor, however, were not confined to the
region of torts to personal property, but pervaded every sphere
and constituted a mass of supplementary law (jus praetorium),
having to the remainder of the law (jus civile) similar relations
and equal proportions to those which equity has to common law
in English jurisprudence.
All attempts to re-construct the formula in an action for
damages under the lex Aquilia are to be regarded as highly
conjectural. Lenel, Das Edictum Perpetuum, p. 158, suggests the
following as & possible formula, when the action was brought
adversus infitiantem in duplum, see § 216, 4 § 9. Si paret
Numerium Negidium illum servum injuria occidisse, quam ob rem,
quanti is servus in eo anno plurimi fuit, tantam pecuniam
Numerium Negidium Aulo Agerio dare oportet, tantae pecuniae
duplum, judex, Numerium Negidium Aulo Agerio condemna: si
non paret, absolve. The actio confessoria may, according to Lenel,
have contained the following demonstratio —quod ille servus
occisus est, quem Numerius Negidius injuria se occidisse, fassus
est.
DE INIURIIS,
$ 220. Iniuria autem committitur
non solum cum quis pugno puta
aut fuste percussus uel etiam wer-
beratus erit, sed ettam si cui conui-
cium factum fuerit, siue quis bona
alicuius quasi debitoris sciens eum
nihil sibi debere proscripserit, siue
quis ad infamiam alicuius libellum
aut carmen scripserit, siue quis
matrem familias aut praetextatum
adsectatus fuerit, et denique aliis
pluribus modis.
$ 221. Pati autem iniuriam uide-
mur non solum per nosmet ipsos,
sed etiam per liberos nostros quos
in potestate habemus; item per
$ 220. Outrage is inflicted not
only by striking with the fist or a
stick or a whip, but by scandalous
vociferation, or by maliciously seiz-
ing and advertising for sale under
an order of the praetor the goods
of a person as if he were insolvent
or an absconding debtor, or by
writing defamatory prose or verse,
or by constantly following a ma-
tron or youth wearing the prae-
texta, and by many other modes.
§ 221. Outrage may be suffered
either in one’s own person, or in
the person of a child in our power,
or of a wife though not in our hand.
eg
450
uxores nostras, guamuts in manu
nostra (non) sint, itaque si filiae
meae quae Titio nupta est, iniuriam
feceris, non solum filiae nomine
tecum agi iniuriarum potest, uerum
etiam meo quoque et Titii nomine.
$ 222. Seruo autem ipsi quidem
nulla iniuria intellegitur fieri, sed
domino per eum fieri uidetur; non
tamen isdem modis quibus etiam
per liberos nostros uel uxores in-
iuriam pati uidemur, sed ita cum
quid atrocius commissum fuerit,
quod aperte in contumeliam domini
fieri uidetur, ueluti si quis alienum
seruum uerberauerit; et in hune
casum formula proponitur. at si
quis seruo conuicium fecerit uel
pugno eum percusserit, non pro-
ponitur ulla formula, nec temere
nti datur,
$ 223. Poena autem iniuriarum
ex lege Xii tabularum propter mem-
brum quidem ruptum talio erat;
propter os uero fractum aut conli-
sum trecentorum assium poena erat,
si libero os fractum erat; at si
Seruo, CL; propter ceteras uero
iniurias XXY assium poena erat con-
stituta. et widebantur illis tem-
poribus in magna paupertate satis
idoneae istae pecuniariae poenae.
§ 224. Sed nunc alioiure utimur.
permittitur enim nobis a praetore
ipsis iniuriam aestimare, et iudex
uel tanti condemnat quanti nos
aestimauerimus, uel minoris, prout
ei uisum fuerit. sed cum atrocem
iniuriam praetor aestimare soleat,
Bi simul constituerit quantae pecu-
niae eo nomine fieri debeat uadimo-
nium, hac ipsa quantitate taxamus
formulam, et iudex quamus possit
uel minoris damnare, plerumque
tamen propter ipsius praetoris auc-
toritatem non audet minuere con-
demnationem.,
DE OBLIGATIONIBUS,
[rr. $$ 220-225.
So that if you insult my daughter
married to Titius, but not passed
out of my power into his hand, you
are suable for outrage in three cu-
mulative actions, in her naine, in
my name, in the name of her hus-
band.
$222. A slave cannot be out-
raged himself, but his master may
be outraged in his person, not how-
ever by all the acts whereby he
might be outraged in the person of
a child or wife, but only by atro-
cious assaults, clearly tending to
dishonour the master, for instance,
by flogging the slave; and for this
affront a formula is provided in the
praetors album: but for verbal
abuse of a slave, or striking him
with the fist, no formula is pro-
vided, nor would an action be
readily granted.
$ 223. The penalty of outrage in
the Twelve Tables for a limb broken
was retaliation: for a bone broken
or bruised three hundred asses, if
the person injured was a freeman ;
one hundred and fifty if he was a
slave; for other injuries twenty-five
asses; and in those days of exces-
sive poverty such sums seemed an
adequate reparation.
$ 224. The rule now in use is
different : the plaintiff is permitted
by the praetor to put his own esti-
mate on the outrage, and the judex
may either condemn the defendant
in the whole of this sum, or in a
lesser sum at his discretion. Atro-
cious outrage, however, is generally
for the praetor to estimate; and
when he has once fixed the sum in
which the defendant must give se-
curity to appear at tbe trial, the
plaintiff inserts the same sum in
the formula; and the judex, though
he has the power of condemning
ihe plaintiff in less, generally, out
of deference to the praetor, will not
venture to reduce the condemnation.
ur. $$ 220-225.]
$ 225. Atrox autem iniuria aes-
timatur uel ex facto, ueluti si quis
ab aliquo uulneratus aut uerberatus
fustibusue caesus fuerit; uel ex
loco, ueluti si cui in theatro aut in
foro iniuria facta sit; uel ex per-
sona, ueluti si magistratus iniuriam
passus fuerit, uel senatori ab humili
persona facta sit iniuria,
DE INIURIIS,
451
$ 225. Outrages are atrocious
either by the act, as when & man is
wounded, horse-whipped, or beaten
with a stick ; or from the place, as
when an affront is offered in the
theatre or the forum ; or from the
persons, as when a magistrate or
a senator is insulted by one of in-
ferior rank.
$ 220. Injuria in this chapter denotes not any wrongful or un-
lawful act, but contumelious wrong, wrong tending to degradation,
a violation of the right to respect, honour, reputation; such as libel,
malicious prosecution, assault and battery, and the like.
§ 221. If the husband were a filiusfamilias, the offender would be
liable to a fourth action, on the part of the father of the husband.
In each of these actions the damages might be different, being
measured by the varying dignity of the party dishonoured by the
outrage, § 225.
Outrage, like theft and robbery, and unlike damage under the
lex Aquilia, requires dolus malus, or unlawful design. In outrage,
as in other torts, the plaintiff had his option of proceeding civilly
or criminally, Inst. 4, 4, 10.
Lenel, § 190, suggests the following as the formula of the actio
injuriarum, Quod dolo malo Numeri Negidii Aulo Agerio
pugno malo percussa est, qua de re agitur, quantam pecuniam
vobis bonum aequum videbitur ob eam rem Numerium Negidium
Aulo Agerio condemnari, dumtaxat HS, ..., tantam pecuniam,
8i non plus quam annus est, cum de ea re experiundi potestas fuit,
recuperatores, Numerium Negidium Aulo Agerio condemnato si
non paret absolvito.
In the Roman law in force at the present day, as the basis or
Common Law of German jurisprudence, bilaterally penal suits
appear to be obsolete, with the exception of actio Injuriarum ; and
here the modern plaintiff has his election between pecuniary dam-
ages and an apology or revocation of the injurious utterance. An
inquiry into the reason why the actio injuriarum alone has survived
will illustrate the nature of bilaterally penal suits. Their principal
object, as already suggested, was to induce the aggrieved party to
abstain from the remedy offered him in archaic society, self-redress
or private revenge. In the case of other wrongs such inducement
is no longer necessary. But in the case of Affront or Dishonour the
Gg
452 DE OBLIGATIONIBUS. [r1. $$ 220—225.
effect of the modern code of honour has led the moderns even more
than the ancients to prefer the archaic institution of Feud or private
war, as embodied in the Duel, to an unromantic appeal to the public
tribunals. Here, then, the mducement to abstain from self-help,
which elsewhere is not needed, is still required.
Theft and Rapine are removed in the present day from the Penal
branch of the Private code to the Criminal code; that is, are not
punished at the discretion of a private plaintiff, but by the action of
& public prosecutor. Savigny, Law of Obligation, § 84.
Gaius seems to have been misled by a double meaning of Injuria
when he connects the actio Injuriarum with the redress given by
the Twelve Tables for grievous bodily harm, § 228. There seems to
be no real connexion between bodily harm and dishonour, although
both may have been denoted in Latin by the word Injuria.
In actions on Delict, as opposed to Real actions and actions on
Contract, the liability of a defendant necessarily implies that he is
convicted either of Dolus or of Culpa, unlawful intention or unlaw-
ful negligence, § 211: there is no liability for damnum absque
injuria,
The opposite of Negligence is Diligence, vigilance, attention,
which, like Negligence, admits of an infinite variety of gradations.
Actions under the lex Aquilia, instituted to recover penalties for
unlawful damage, have this peculiarity that, when Culpa is once
established, the amount of the defendant’s liability does not depend
on its degree.
In actions founded on Dispositions, that is on Contract and quasi-
contract, the liability of the defendant depends on the degree of his
negligence. In some relations a man is bound to make good losses
occasioned by slight negligence: in others he is only compelled to
indemnify for the consequences of gross negligence.
The terms, Gross and Slight, like other quantitative terms, have
no positive signification until we fix upon some unit of measure-
ment or standard of comparison to which any given instance may
be referred and by which it may be measured. 'Two standards
are frequently employed by the Roman jurists: the vigilant care
(exacta diligentia) of a good man of business (diligens pater-
familias, homo frugi) and the care which a given individual habi-
tually bestows on his own interests (suus modus, diligentia quam
suis rebus adhibere solet) Slight negligence is the absence of the
diligence of the careful man of business; gross negligence falls
nr.$$220-225. DILIGENCE, NEGLIGENCE. 458
considerably below this standard. Diligence and negligence, when
referred to the standard of the careful man of business, are some-
times called abstract or absolute; when referred to the conduct of
the individual where his own interests are concerned, concrete or
relative. Relative negligence is not further subdivided, like absolute,
into slight and gross.
The degree of diligence required of a man in any relation and the
standard by which it is judged depends generally on the question
whether he is benefitted or not benefitted by the relation. He who
derives no benefit from it, e. g. the depositary, lender, tutor, curator,
is only answerable for dolus and culpa lata, is only required to show
relative diligence. If his carelessness is relative as well as absolute,
i.e. if it is greater than he shows in his own affairs, it is not dis-
tinguished from culpa lata and dolus. [English law, it may be
observed, exacts a greater amount of diligence than this from
Trustees, although they are unremunerated.| It might at first
seem that Agency (mandatum) formed an exception to this rule, for
businesslike care (exacta diligentia) is required of the Agent (man-
datarius) whether authorized (procurator) or unauthorized (nego-
tiorum gestor); and yet the agent, like the depositary, i8 said to be
unremunerated. Agency, however, was not really gratuitous, the
honorarium of the agent, as we have seen, though not recoverable
in an ordinary action before a judex, being recoverable at the
tribunal of the praetor in the exercise of his cognitio extraordinaria.
He who derives advantage from a contract or disposition is re-
quired to show businesslike care, and is responsible for abstract or
absolute negligence, though slight; nor does it matter whether he
is exclusively advantaged by the relation, like the depositor and the
gratuitous borrower for use (commodatarius), [with whom, after the
previous remarks, we must not class the principal or mandator]; or
whether both parties to the disposition derive a benefit from it, e. g.
vendor, vendee, locator, conductor, mortgagor, mortgagee.
Exceptions to this rule, however, are to be found in the cases of
the partner, the tenant in common (communio), the husband in
respect of the dotal estate, the coheir, the colegatee. In these
relations both parties have an advantage, and yet their diligence is
only estimated by the relative standard: they have to show as
much care as they show in their own affairs; not more, apparently,
than the depositary or tutor; not the absolute care of diligens
paterfamilias.
454 . DE OBLIGATIONIBUS.
The old trichotomist division of culpa into lata, levis, and levis-
sima, is now generally abandoned, levissima disappearing, and
relative negligence, like culpa lata, being assimilated to intentional
wrong (dolus).
Under the head of Obligatio ex delicto should be placed, ac-
cording to Savigny, the doctrine of PossEssion (Interdict-posses-
sion), or, rather, of Dispossession, with its remedies, the Interdicts
Utrubi, Uti possidetis, and Unde vi. This would agree with the
Roman arrangement: at least the Roman juriste, instead of re-
cognizing in Possession a primary right, imposing a negative
obligation on all the world (jus in rem), were content with re-
garding Dispossession as a wrong imposing a secondary positive
obligation on the individual dispossessor, and treated all the pos-
sessory Interdicts as actions ex delicto, 4 § 140, comm.
But the true place of Possession seems indicated by Vangerow
who distinguishes between the Interdicta Retinendae and Recu-
perandae possessionis. The Interdictum Recuperandae possessionis
i. e. the Interdict Unde vi, is really based on obligatio ex maleficio,
and belongs to Penal jurisprudence: whereas Possession as con-
templated by the Interdicta Retinendae possessionis, i.e. the In-
terdicts Uti possidetis and Utrubi, is a primary right demanding
universal recognition (jus in rem) that has its place in the code
regulating Dominion : and the interdicts allotted for ite protection,
though nominally based on obligatio ex delicto are really coordinate
not with Penal actions, but with Real actions or Vindieatio. Gaius
only deals with Possession and possessory Interdicts as belonging to
the code of Procedure, without indicating their position in the code
of Substantive law.
BOOK IV
DE ACTIONIBUS.
$ 1. |— quot genera ac-
tionum sint, uerius uidetur duo esse,
in | rem et in personam ; nam qui
III] esse dixerunt ex sponsionum
generibus, non animaduerterunt
quasdam species actionum inter
genera se rettulisse.
$ 2. In personam actio est qua
agimus cum aliquo qui nobis uel ex
contractu uel ex delicto obligatus
est, id est cum intendimus DARE,
FACERE, PRAESTARE OPORTERE.
§ 3. In rem actio est, cum aut
corporslem rem intendimus nos-
iram esse, au£ ius aliquod nobis
conpetere, ueluti utend: aut utendi
fruendi, eundi agendi aquamue du-
cendi uel altius tollendi prospicien-
diue; (aut cum) actio ex diuerso
aduersario est negatiua,
$ 4. Sic itaque discretis actioni-
bus certum est non posse nos rem
nostram ab alio ita petere 81 PARET
EVM DARE OPORTERE. nec enim
quod nostrum est, nobis dari potest,
* $1. We have now to treat of
Actions, which fall into two classes,
being either Real or Personal: for
those who count four classes, in-
cluding the forms of sponsio, com- .
mit the error of co-ordinating sub-
classes with classes.
$ 2. A Personal action seeks to
enforce an obligation imposed on
the defendant by his contract or
delict, that is to say, 1s the conten-
tion that he is bound to transfer
some dominion or to perform some
service or to repair some loss.
$3. A Real action is my claim
of some dominion or some frac-
tion of dominion, as a right of use
or usufruct of a thing belonging
to my neighbour, a right of horse-
way or carriage-way through his
land, of fetching water from a
source in his land, of raising my
house above a certain height, or of
having the prospect from my win-
dows unobstructed ; or the opposite
contention of my neighbour, his
denial that I have any such fraction
of dominion.
§ 4. Real and Personal actions
being thus distinguished, it is clear
that I cannot demand my property
from another in the following form;
‘If it be proved that the defendant
"456
cum scilicet id dari nobis intellega-
tur quod (ta datur, ut) nostrum
fiat; nec res quae (nostra tam est),
nostra amplius fieri potest. plane
odio furum, quo magis pluribus
actionibus teneantur, receptum est,
ut extra poenam dupli aut quad-
rupli rei recipiendae nomine fures
etiam hac actione teneantur si
PARET EOS DARE OPORTERE, quam-
uis sit etiam aduersus eos haec
actio qua rem nostram esse peti-
mus.
DE ACTIONIBUS.
[rv. $$ 1-9.
is bound to convey such property
to me. What is my own cannot be
conveyed to me, for conveyance to
me makes a thing mine, and what
is already mine cannot be made
more mine than it is. Yet, for the
prevention of theft and multiplica-
tion of remedies against the thief,
besides the penalty of twice the
value of the thing stolen awarded
against the thief not caught in the
act, and the penalty of four times
the value against the thief caught
in the act, the thing itself may be
recovered by a personal action in
which the contention is thus
worded: ‘If it be proved that the
_ defendant ought to convey the
§ 5. Appellantur autem in rem
quidem actiones uindicationes, in
personam uero actiones quibus DARI
FIERIVE OPORTERE intendimus, con-
dictiones.
$ 6. Agimus autem interdum, ut
rem tantum consequamur, inter-
dum ut poenam tantum, alias ut
rem et poenas.
$7. Rem tantum persequimur
uelut actionibus (quibus) ex con-
iractu agimus.
$ 8. Poenam tantum perzequimur
uelut actione furti et iniuriarum et
secundum quorundam opinionem
actione ui bonorum raptorum ; nam
ipsius rei et uindicatio et condictio
nobis conpetit.
$ 9. Rem uero et poenam perse-
quimur uelut ex his causis, ex qui-
bus aduersus infitiantem in duplum
agimus; quod accidit per actionem
iudicati, depensi, damni inturiae
legis Aqui/iae, aut legatorum nomine
thing in question,' as well as by the
real action thus formulated: ‘If it
be proved that the thing in question
is the property of the plaintiff.’
§ 5. A Real action is called vindi-
catio; a Personal action, whereby
we contend that some property
should be conveyed to us or some
service performed for us, is called
condictio.
§ 6. We sue sometimes only to
obtain restoration of the object of a
violated primary right, sometimes
only for a penalty for its violation,
sometimes both for restoration and
for & penalty.
$7. We sue only for restora-
tion in (real actions and in) per-
sonal actions founded on contraet.
$ 8. We sue only for a penalty in
actions of Theft and Outrage, and,
according to some, of Rapine; for
the object itself of the primary
right may be recovered either by
Real or by Conservative (non-
penal) personal action.
$9. We sue both for restoration
and for a penalty in those actions
where the defendant who denies
his obligation is condemned to pay
double, as in the action to recover
a judgment debt, to recover money
Iv. $$ 1-9.] ACTIONUM DIVISIO. 457
quae per damnationem certa relicta paid by a sponsor for his principal,
sunt. to recover damages for injury to
property under the lex Aquilia, and
to recover legacies of a definite
amount bequeathed by condemna-
tion of the successor.
§ 1. From Substantive law Gaius now passes to the law of Pro-
cedure, confining himself for the most part to its Material as opposed.
to its Formal aspect: dealing with procedure, that is to say, not so
far as it is merely the method of realizing pre-existing rights, but
rather so far as ite stages are titles which, like Dispositions and
Torte, themselves originate new rights and new obligations.
If we inquire which code is the earlier in its development, the
Substantive code or the code of Procedure, the answer is that they
are essentially contemporaneous: a Substantive code can have no
actual existence unless there is some method of giving it force, and
again a code of procedure can have no meaning unless there is a
substantive law to be administered. But after recognizing that
the two codes are correlative and necessarily coexistent, we find
that historically the code of Procedure is prior in the chronological
order: it attains to a high grade of development, while the Sub-
stantive code which started into birth at the same time remains
in a rudimentary undeveloped condition. The tribunals once esta-
blished by the legislator soon evolve strict rules to govern their
proceedings, while the legislator is too much occupied with wars
domestic and foreign to furnish the substantive law which the
tribunals ought to administer.
The following contrast of ancient and modern jurisprudence here
deserves a notice. No primary rights can be conceived without
sanctioning rights, or rights which arise when the primary rights
are violated: and again no sanctioning rights can be conceived
without Actions or modes of evoking the interposition of the
sovereign power. And, as Rights imply Actions, so reciprocally
Actions imply Rights. But though, as corresponding or correlated
terms, Right and Action have a necessary connexion, and the
existence of one may be inferred from the existence of the other ;
two systems of jurisprudence may differ as to which of these terms,
the Right or the Action, they deem the more evident; which they
regard as the datum and which the matter to be proved ; which the
logical premiss and which the conclusion.
In Rome the Remedy was regarded as the certainty ; the Right,
458 DE ACTIONIBUS. _ [xv. 8$ 1-9.
primary or sanctioning, as the matter of deduction. The forms of
Action, emphatically so in Statute-process and to a great degree in
the Formulary system, as crystallized in the law or in the edict,
were capable of enumeration and incapable of multiplication ; and
from these forms the citizen might deduce the list of his nghts and
obligations. The logic of the ancient jurist may be expressed in
the maxim: Where there is a Remedy there is a Right: There is
no Right unless there is a Remedy.
The modern jurist assumes the other, the more ideal of the two
correlated terms, to be the more evident, and acts upon the converse
maxim: Where there is a Right there is a Remedy ; or, Given the
Right, the Remedy follows. The action now is the dependent term:
its forms are unimportant and indefinitely variable; they are no
longer crystallizations. If a Right is established and no appro-
‘priate form of action seems to exist, a new one is forthwith invented,
and ite fitness to enforce the established right is sufficient to pro-
cure its recognition by the judicature. Such at least, if not opposite
goals at which ancient and modern jurisprudence have arrived, ap-
pear to be opposite directions in which they diverge. Ihering, § 50.
Sponsio or wager was an indirect mode of submitting questions
to judicial decision, which seems to have been very commonly
employed before the introduction of the formulary system. We are
left to conjecture how its classification enabled any jurist to count
four classes of action. Its principal division seems to be into the
sponsio where the pecuniary risk was serious and the penal sum
important (sponsio poenalis), and the sponsio where the penal sum
was nominal and not actually exacted (sponsio praejudicialis). Add-
ing these two divisions to real and personal actions, we should have
four classes. But as every sponsio, asserting an obligation arising
from stipulation, was a species of personal action, this classification
would involve a co-ordination of sub-genera and genera, or sub-
divisions and divisions.
A Real action is one which asserts a jus in rem, a Personal action
one which asserts a jus in personam. A jus in rem, we may
remember, is a right to certain forbearances, or freedom from
molestation, corresponding to a duty imposed on all the world; a
jus in personam is a right to certain performances corresponding to
a duty imposed on a determinate person. Jura in rem are Status,
or Property, or Servitude, that is, some fraction of property. Jura
in personam are Obligations founded on either contract or delicet.
1v. $$ 1-9.] ACTIONUM DIVISIO. 459
Primordial rights (life, limb, liberty, honour, &c.), though jura in
rem, do not give rise to real actions; their violation engenders an
obligation in the violator, which is purfued by a personal action ex
delicto.
A Real action, accordingly, asserts either the status or the pro-
prietorship of the plaintiff, if we include under proprietorship the
elements of property called easements or servitudes; a Personal
action asserts an obligation of the defendant towards the plaintiff.
Real and Personal actions of Roman Jaw must not be identified
with those of English law. A Real action in English law may be
defined with sufficient accuracy for our present purpose as an action
whereby we claim property in an immovable; a claim of property
in à movable is made by Personal action. In Roman law a claim
of property in a movable is a Real action just as much as a claim
of property in an immovable. A Personal action in Roman law
asserts no property existing in the plaintiff, but an obligation or
nght to a conveyance or transmutation of property from the
defendant to the plaintiff.
To make the English and Roman classifications coincide, Detinue
and Trover (actions for the recovery of movable property) ought to
be classed with real actions.
A Real action names no party but the Plaintiff in the intentio,
the principal part of the formula or written instructions of the
praetor to the judex, in which the plaintiff's claim is specified ;
a Personal action names the defendant as well as the plaintiff in
the intentio. For instance, a vindicatio asserting the status of
3 person contained an intentio to this effect: Si paret Titium ex
jure Quiritium liberum esse. .
(We have no record of the precise form of the intentio in a con-
troversy of status. We know that in a question of libertas (liberalis
causa), until the time of Justinian, the person whose freedom was
in dispute could not be either plaintiff or defendant, his rights were
advocated by an Assertor, Cod. 7, 17, De assertione tollenda. In
Justinian's time the formulary system, with its precisely framed
intentio, no longer existed.)
A vindicatio asserting property in land or a slave contained an
intentio in these words: Si paret illum fundum—illum hominem—
ex jure Quiritium Auli Agerii (Plaintiff) esse. A vindicatio claiming
not absolute property, but some element of property for instance,
a rural servitude, contained an intentio to this effect: Si paret jus
460 DE ACTIONIBUS. [1v. $$ 1-9.
eundi per illum fundum ex jure Quiritium Aulo Agerio competere,
§ 8. Cf.$$ 92, 98.
A Personal action, on the contrary, named in the intentio the
defendant, who was alleged to be under an obligation to the
plaintiff. E.g. if the plaintiff alleged that the defendant lay under
an obligation to pay him a certain sum of money, the intentio
was in this form: Si paret Aulo Agerio Numerium Negidium
(defendant) sestertium decem millia dare oportere, $4. (Perhaps also
the intentio in the claim of servitude, contained the words: invito
Numerio Negidio, i. e. named the defendant.)
The word Dare is used in the Intentio of a Condictio Certi, 1. e.
an action wherein the plaintiff asserts that the defendant is under
an obligation to convey quiritary property in a determinate thing,
whether a sum of money or any other subject of property, a certain
slave, certain corn, certain land. E.g. Si paret Numerium Negidium
Aulo Agerio sestertium decem millia—tritici Africi optimi centum
modios—iter per illum fundum ad illum fundum—dare oportere.
The word Facere never appears to stand alone in an intentio, but
in its stead we have Dare facere in the Intentio of Condictio Incerti,
that is, of an action to enforce a claim of an uncertain amount,
a claim of any service but the transfer of quintary property m
a certain thing, that is, to enforce any obligation (except those
expressed by Praestare) not included under Dare as above defined.
E. g. Quidquid paret Numerium Negidium Aulo Agerio dare facere
oportere, $ 5 comm.
Praestare does not appear to have ever been used in the Intentio
of a Formula. Praestare is a term of wider meaning than the two
preceding, and appears specifically to denote reparation for any
‘harm, compensation for any loss, the fulfilment, that is, of a delictual
obligation. It is also used in connection with the obligation ex
fide bona arising out of culpa and dolus relating to Contract. In
all civil actions founded on Delict the intentio was probably in
the terms: damnum decidere oportere, § 37. All non-civil or prae-
torian actions had an intentio in factum concepta.
§ 3. Negativa. An action respecting a servitude was either
Confessoria or Negativa. If the plaintiff claimed a servitude over
the land or house of the defendant, his action was called Con-
fessoria; if he denied that his own land or house was subject to
a servitude, his action was called Negativa (or Negatoria) in rem
actio. In Confessoria the intentio was of the form: jus mihi esse,
1v. $$ 1-9.] ACTIONUM DIVISIO. 461
invito te, utendi fruendi: in Negatoria of the form; jus tibi non
esse, me invito, utendi fruendi. In this action the plaintiff, probably,
was not bound to prove a negative, but only the existence of his
own dominion; it would then be incumbent on the defendant to
prove affirmatively a limitation of this dominion.
The coexistence of actio confessoria and actio negatoria with the
antithesis of Positive and Negative servitudes is at first sight
embarrassing : for we might suppose that an actio Confessoria of
a jus altius tollendi was equivalent to an actio Negatoria of a jus
altius Non tollendi ; and that an actio Confessoria of a jus altius Non
tollendi was equivalent to an actio Negatoria of a jus altius tollendi :
80 that the law would be encumbered by a redundancy of forms.
The following appears to be the explanation and to reconcile
statements in our authorities which at first sight are inconsistent.
The nature of the Servitude, Positive or Negative, alleged by the
plaintiff and, consequentially, the character of the action, Confessoria
or Negatoria, which he instituted, depended on the nature of the
facts on which he relied as his title and on the nature of the allega-
tions by which the defendant opposed his claim.
The plaintiff asserted & nght of raising the height of his house
by an actio Confessoria of a jus altius tollendi, consistently
with the statement in § 3, if he alleged the Extinction of a
former jus altius Non tollendi, i.e. the recovery of his original
freedom ; for we have mentioned, 2 $ 81, that the extinction of an
Urban servitude could only be aecomplished by the erection of
a contrary or antagonistic servitude: he asserted it by an actio
Negatoria of a jus Non altius tollendi; consistently with Dig. 8, 5,
4 § 7, (competit etiam de servitute actio domino aedificii neganti
servitutem se vicino debere), if he denied that such a jus Non altius
tollendi had ever existed.
Similarly a right of prohibiting a neighbour from raising the
height of his house would probably be asserted by actio Confessoria
of jus Non altius tollendi if the defendant denied that such a right
had ever existed: by actio Negatoria of jus altius tollendi, con-
sistently with Inst. 4, 6, 2, (si quis intendat jus non esse adversario
. . . altius tollendi . . . istae quoque actiones in rem sunt sed Nega-
tivae), if the defendant contended that, though it once existed, it
had been extinguished by usucapio libertatis.
. Whether an action was Confessoria or Negatoria was perhaps
not manifest on the face of the intentio but depended on the
462 DE ACTIONIBUS, [xv. $$ 1-9.
nature of the facts by which the intentio was supported. For in-
stance, in Dig. 8, 5, 4 § 7, where Ulpian is apparently speaking of
actio Negativa of jus Non altius tollendi, he presently adds: hoc
igitur intendo, habere me jus altius tollendi invito eo cum quo ago:
terms which seem more appropriate for expressing an actio Con-
fessoria of & jus altius tollendi; and which probably would express
such an action, if the plaintiff intended to aver a reacquisition of
his original freedom. |
In both Confessoria and Negatoria the first proof was incum-
bent on the plaintiff. The plaintiff Negator of jus Non altius
tollendi or Confessor of jus altius tollendi had first to adduce proof
in support of his contention— which in this case would be simply
to prove the fact of his dominion— before the defendant was called
upon to prove his opposite contention; and the plaintiff Confessor
as dominant owner of a servitude must begin with adducing proof
of its existence before the defendant is called upon to disprove its
existence or to prove ite extinction. Cf. § 88, comm.
The abolition in England of real actions has destroyed most of
the likeness that once existed in the remedies provided by English
law for the protection or impeachment of Incorporeal hereditaments
(more or less identical with the rights which the Romans called
Servitudes) and the remedies by which at Roman law Servitudes
were protected or impeached. Before the abolition of Real actions
each incorporeal hereditament was asserted or contested by some
Real action corresponding either to actio Confessoria or to actio
Negatoria. After their abolition the only remedy is Trespass or
Trespass on the case (or their modern equivalents), personal actions
which procure not restitution of a real right, but satisfaction in
damages for injury sustained by its contravention, and which will
lie as often as the wrong is repeated: or the Court of Chancery will
stay the contimuance or progress of a wrong by the issue of an
Injunction.
As the absolute right of Dominion is supplemented by a less
perfect right, the right of Possession, protected by possessory inter-
dicts instead of vindicatio, the remedy of Dominion ; so the fraction
of Dominion or perfect right which forms a Servitude is sup-
plemented by an imperfect right, a right, of Quasi-possession, also
protected by Interdicts, some identical with those which protect
Dominion, some varying with the nature of the Servitude, § 139.
§ 4. Gaius points out that the Roman law of his day was
rv. $$ 1-9.] ACTIONUM DIVISIO. 463
illogical in allowing stolen property to be recovered by Personal
action, cf. Inst. Just. 4, 6 $$ 14, 19. No translation of property is
operated by theft. Roman law contained no disposition similar to
that of English law, that property in stolen goods is transmuted
by sale in market overt. Even in the hands of a third person, an
innocent purchaser, the thing remained the property of the original
owner, exempt from the potent chemistry of usucapion. It follows
that the only action logically competent to the proprietor who still
remained proprietor was a real action,
In the condictio ex causa furtiva, instead of the intentio, S1 paret
dare oportere, $ 4, which implies that the plaintiff 1s not proprietor,
we might have expected him to sue with the intentio, Dare facere
oportere, which might be merely a form of claiming redelivery of
possession, and accordingly would be consistent with his proprietor-
ship. The following is the explanation why the other formula was
allowed : a condictio certi for a certain sum of money was accom-
panied by a sponsio poenalis in a third of the sum in dispute, to be
forfeited by the party who lost the action, § 171. In order to
subject the thief to this further penalty, the legislator, at the cost
of an anomaly, permitted the plaintiff to sue with the formula, Si
paret dare oportere,
$ 5. Condietio is an actio stricti juris, see §§ 18-20, comm. It
excludes actions ex fide bona (which had an intentio Quidquid
dari fieri oportet ex fide bona, § 47), actions ex delicto with
the exception of condictio furtiva, $ 4, and praetorian actions
in faetum. It is divided into Condictio incerti, with an intentio
Quidquid paret dare facere oportere, and Condictio certi, with an
intentio, Si paret dare oportere. The latter is either brought to
recover à certain sum of money, and then is specially called Con-
dictio certi, or is brought to recover land or a slave or any other
certain thing, and then is called Condictio triticaria. The origin of
this name is doubtful. Petitio, sometimes equivalent to vindicatio,
is sometimes also equivalent to Condictio certi. In both cases it
denotes the certainty and individuality of the property claimed.
In condictio certi both the intentio (which names certa pecunia)
and the condemnatio are certae. In condictio triticaria the intentio
(which names some other certa res) is certa; the condemnatio
(quanti ea res erit) is incerta. In eondictio incerti both intentio
&nd condemnatio are incertae, $ 49, comm.
$6. Rights may be divided into primary and secondary. Primary
464 . DE ACTIONIBUS. [1v. $$ 1-9.
rights are antecedent to wrong, and may be divided into status, prim-
ordial rights, property, and obligation; the title or investitive fact
which creates them being a condition defining a status or capacity
of primordial righte, or one of the modes of acquiring property or
of forming a contract. Secondary or sanctioning rights imply an
antecedent wrong, and their title is a breach of contract or the
violation of some real right, statistic, primordial, or proprietary.
Both these classes of rights and the corresponding duties are
creations of the law: for every law is both imperative and coercitory ;
that is, both by its command confers a primary right and imposes
a corresponding primary duty, and sanctions its command by con-
ferring a secondary right and imposing a secondary duty, that is,
by conferring a remedy and employing coercion in the event of
disobedience.
The sanctions of the civil law are either reparative and remedial
or punitory and preventive; in one case the object of the law is
the RESTORATION of the plaintiff by restitution or compensation,
and then his primary right is the measure of his redress or sanc-
tioning right ; in the other case it is the repression of similar wrongs
by inflicting a PUNISHMENT on the defendant which may operate
as a terror to himself in future (reformatory) and to other wrong-
doers (exemplary); and then the sanctioning right may far exceed
his primary right. Even REsToRATION embraces the mediate as
well as the immediate value of the primary right, 3 § 212, comm.
The language of Roman jurisprudence makes no distinction be-
tween & primary right and a sanctioning right when the sanction is
purely RESTORATIVE, even though it include the accessory or conse-
quential value, calling both by the name of the Object (Res). The
redress directly given by the Roman law under the formulary pro-
eedure was always pecuniary compensation, and we might have
expected Roman jurists above all others to distinguish between the
objects of the plaintiff’s primary and secondary nght; but the in-
direct result of a real action might be the recovery of specific restitu-
tion, and it was in view of this type of redress that the Roman
lawyers were led to speak of the objects of primary and reparative
secondary rights as identical.
If we next proceed to inquire what classes of actions are brought
for reparation or to recover the object of a primary right (rei perse-
cutio) and what for the recovery of a penalty (poenae persecutio),
§§ 6-9, we shall have no difficulty in perceiving that real actions and
rv. $$ 1-9.] ACTIONUM DIVISIO. 465
actions on contract belong to the former class (rei persecutio); and
that of actions on delict, a subdivision, which may be called Vindic-
tive (quae ad ultionem pertinent, quae vindictam continent), such as
the actio injuriarum, belong to the latter (poenae persecutio). The
effect of the former is restoration: they leave the plaintiff no richer
and the defendant no poorer in respect of property than he was at
first ; whereas the vindictive actions leave the plaintiff, in respect of
property, richer, and the defendant poorer. But the remaining divi-
sion of actions on delict, those brought to recover indemnification
for damage to property, are more ambiguous in character. If we
merely regard their effect on the plaintiff they seem to be purely
reparative, for they leave the plaintiff no richer; but if we regard
their effect on the defendant they seem to be penal, for if the wrong
done by the defendant was a destruction of property, compensation
to the plaintiff will leave the defendant poorer.
We have seen, 8 § 212, that, even under a contract, indemnification
included indirect losses or the mediate value of the primary right,
and might amount to twice the immediate value of the primary
right: and that, founded on delicet, indemnification was not re-
stricted to any maximum.
Accordingly, with respect to these semi-penal [unilaterally penal]
actions, the language of the Roman jurists varies, they are sometimes
regarded as rei persecutio, and sometimes as poenae persecutio; but
the latter view predominated, and they have the principal incidents
of penal actions: they are only maintainable within a year, and are
not passively transmissible, 1. e. maintainable against the successor of
the defendant except so far as restorative, 1.e. so far as the successor
was enriched, unless the suit was commenced (lis contestata) against
the original wrong-doer, in which case the penal obligation is
novated, 8 § 180, and becomes passively transmissible; moreover
they are maintainable against each one of several delinquents for
the entire damages ; and they can be brought in the form of noxal
actions against the paterfamilias or dominus, See Grueber, Lex
Aquilia, p. 275.
In these cases, accordingly, the plaintiff had not always an
adequate remedy under the Roman law. English law originally
followed the rule of Roman law, and no action of Tort, even for
damage to property, would lie against the executor or administrator
of the wrong-doer. [The maxim: actio personalis moritur cum
persona, often used by expositors of English law, must have origi-
Hh
466 : DE ACTIONIBUS. [xv. $$ 1-9
nated in a misprint of personalis for poenalis.] But now, by 8 and
4 Will. IV, c. 42, an action for injury to property, as opposed to
actions for slander and the like (vindictive actions, which die with
the person), is maintainable against the executors and administra-
tors of the wrong-doer, provided the wrong was committed within
six months before his death and the action 1s brought within a year
after his death, if it was an injury to real property, or within
six months after his executors or administrators have taken on
themselves administration, if it was an injury to personal property.
Thus within the limits of this statute the English plaintiff has an
ampler remedy than the Roman. See Pollock's Law of Torts,
1 Ch. III. § 2.
'The distinction of Res and Poena is important in questions re-
specting the extinction of a suit (1) by death: Vindictive suits
being incapable of either active or passive transmission (trans-
mission to the heir of the plaintiff or defendant), Penal suits
being incapable of passive transmission, Civil suits bemg capable
of both active and passive transmission: § 111, comm. (2):by pre-
scription: Penal suits prescribing in a year, Civil suits in thirty
years: §§ 110-113, comm. (3) by concurrence, i.e. the merger,
absorption, or alternation of several co-existing suits. The import-
ance of the distinction of Res and Poena has diminished m con-
sequence of the desuetude of penal actions.
Damages in English law means any uncertain amount of money:
i.e. a claim for damages includes rei persecutio, where the res is in-
certa, as well as poenae persecutio. An obligation to pay a certain
sum is called a Debt.
§ 7. One action upon contract, namely, the action against a de-
positary, was brought for double the value of the deposit, i.e. was
partly penal, if the deposit was necessitated by fire, shipwreck,
tumult, or similar distress.
$ 8. In Justinian's time the penalty of Rapine was only thrice
the value of the thing taken with violence, that is, the quadruple
damages were partly penal, for the actions vi bonorum raptorum
and the real or personal action to recover the thing taken were not
concurrent or cumulative, Inst. 4, 6, 19. For a case of quad-
ruple damages, of which 1 was restorative and $ penal, under
9 Anne, c. 14, against Gaming, see Stephen's Blackstone, Intro-
duction, p. 3.
$9. The actio judicati was brought against a defendant who
1v. $$ 10-17.] LEGIS ACTIONES, 467
denied that à judgment had been given against him or that it was
still unsatisfied. He was liable to be condemned to pay twice the
amount of the judgment debt, and was required to give security
judicatum solvi. This security was the modern representative of
the interposition of a Vindex in the old proceeding of manus
injectio. In manus injectio pro judicato it seems the Vindex who
lost the suit was condemned, as a penalty for his tortious inter-
ference, to pay a sum equal to the original judgment debt; in other
words, to discharge the debtor he had to pay twice the amount of
the debt. In manus injectio pura the defendant was his own Vindex,
and, if he lost, was condemned in double the debt. See $6 21-25.
The actio depensi [see above, 3 $ 127] was introduced by a lex
Publilia of uncertain date, and as it was only given to the sponsor,
would become obsolete when the sponsor was superseded by the
fidejussor.
Justinian confined the action of the legatee against the heres for
twice the value of the legacy to the case of bequests to churches
and religious institutions. Inst. 8, 27, 7.
LEGIS ACTIONES.
$ 10. Quaedam praeterea sunt
actiones quae ad legis actionem ex-
primuntur, quaedam sua ui &c po-
testate constant. quod ut mani-
festum fiat, opus est ut prius de
legis actionibus loquamur.
$ 11. Actiones quas in usu uete-
res habuerunt, legis actiones appel-
labantur uel ideo quod legibus
proditae erant (quippe tunc edicta
praetoris, quibus conplures actiones
introductae sunt, nondum in usu
habebantur), uel ideo quia ipsarum
legum uerbis accommodatae erant
et ideo inmutabiles proinde atque
leges obseruabantur. unde eum
qui de uitibus succisis ita egisset,
ut in actione uites nominaret, re-
sponsum esí rem perdidisse, cum
debuisset arbores nominare eo quod
lex Xii tabularum, ex qua de
uitibus succisis actio conpeteret,
generaliter de arboribus succisis
loqueretur.
$12. Lege autem agebatur mo-
dis quinque: sacramento, per iudi-
$ 10. Some actions are moulded
upon, and contain a reference to,
the forms of statute-process; others
are unrelated and independent.
This requires an examination of
the older system.
$ 11. These proceedings are called
statute-process, either because they
were appointed by statute before
the edict of the praetor, the source
of many new actions, began to be
published, or because they followed
the letter of a statute and in form
were as immutable as law. Thus,
a man who sued another for cutting
his vines, and in his action called
them vines, irreparably lost his right
because he ought to have called them
trees, as the Twelve Tables, which
confer the action, speak generally of
trees and not particularly of vines.
$12. There were five forms of
statute-process, Sacramentum, Ju-
Hha
468
cis postulationem, per condictionem,
per manus iniectionem, per pignoris
caplonem.
DE ACTIONIBUS.
[1v. $$ 10-17.
dicis postulatio, Condictio, Manus
injectio, and Pignoris captio.
SACRAMENTUM.
$ 13. Sacramenti actio generalis
erat ; de quibus enim rebus ut aliter
ageretur lege cautum non erat, de
his sacramento agebatur. eaque
actio proinde periculosa erat | falsi
—, atque hoc tempore periculosa
est actio cer|tae creditae pecuniae
propter sponsionem qua periclitatur
reus si temere neget, (et) restipula-
tionem qua periclitatur actor si non
debitum petat; nam qui uictus
erat, summam sacramenti praesta-
bat poenae nomine, eaque in publi-
cum cedebat praedesque eo nomine
praetori dabantur, non ut nunc
sponsionis et restipulationis poena
lucro cedit aduersario qu? uicerit.
$ 14. Poena autem sacramenti
aut quingenaria erat aut quinqua-
genaria. nam de rebus mille aeris
plurisue quingentis assibus, de mi-
noris uero quinquaginta assibus
sacramento contendebatur ; nam ita
lege xii tabularum cautum erat.
(at) si de libertate hominis contro-
uersia erat, etiamsi pretiosissimus
homo esset, tamen ut L assibus
sacramento contenderetur, eadem
lege cautum est fawore scilicet
libertatis, ne onerarentur adser-
tores.
(11 uersus in C legi nequeunt)
—
$ 15. omnes actiones————
(5 uersus in C legi nequeunt)
|——-captus—|
(5 uersus in C legi nequeunt)
| ——2ad iudicem ac-
cipiendum uenirent; postea uero
reuersis dabatur. ut autem (die)
xxx iudex daretur, per legem Pin-
ariam factum est ; ante eam autem
legem statim dabatur iudex. illud
$ 13. Sacramentum (Stake or
Deposit) was the general action,
for wherever no other mode was
appointed by law, the procedure
was by sacramentum. It was at-
tended with risk to the parties,
like the modern action to recover
money lent, wherein the defendant
and plaintiff by the sponsio and
restipulatio respectively forfeit a
penal sum, if unsuccessful The
praetor took securities for the
stake, which the vanquished party
forfeited to the treasury, not, as he
forfeits the penal sum of the modern
sponsio or restipulatio, to the victor
in the suit.
§ 14. The penal sum of the sa-
cramentum was either five hundred
asses or fifty asses; five hundred
when the subject of dispute was
valued at a thousand or upwards,
fifty when at less than a thousand.
This was provided by the law of
the Twelve Tables. When, how-
ever, personal freedom was the sub-
ject of dispute, however valuable a
slave the man whose status was
litigated might be, the penal sum
was only fifty asses. This was
enacted by the Twelve Tables in
favour of liberty, that the vindex
or assertor of liberty might never
be deterred by the magnitude of
the risk.
§ 15. [When the sacramentum
was a personal action, that is to
say, instituted to enforce an obliga-
tion, after giving securities for the
stake, the parties left the praetor's
court, having arranged to reappear
on the thirtieth day] to receive a
judex. When they appeared again
the Praetor nominated a judex.
This was in pursuance of the lex
1v. $$ 10-17.]
ex superioribus intellegimus, si de
re minoris quam ( 3t) aeris agebatur,
quinquagenario sacramento, non
quingenario eos contendere solitos
fuisse. postea tamen quam iudex
datus esset, conperendinum diem, ut
ad iudicem uenirent, denuntiabant.
deinde cum ad iudicem uenerant,
antequam apud eum causam pero-
rarent, solebant brewiter ei et quasi
per indicem rem exponere; quae
dicebatur causae coniectio, quasi
causae guae in breue coactio.
$ 16. Si in rem agebatur, mo-
bilia quidem et mouentia, quae
modo in ius adferri adduciue pos-
sent, in iure uindicabantur ad hunc
modum: qui uindicabat, festucam
lenebat ; deinde ipsam rem adpre-
hendebat, ueluti hominem, et ita
dicebat HYNC EGO HOMINEM EX
IVRE QVIRITIVM MEVM ESSE AIO
SECVNDVM 8VAM CAVBAM. SICVT
DIXI, ECCE TIBI, VINDICTAM INPOSVI,
et simul homini festucam inponebat;
aduersarius eadem similiter dicebat
et faciebat; cum uterque uindi-
casset, praetor dicebat MITTITE
AMBO HOMINEM ; ill mittebant ;
qui prior uindica(uerat, ita alterum
interroga )bat POSTVLO ANNE DICAS
QVA EX CAVSA VINDICAVERIS ; ille
respondebat Iv8 FECI SICVT VINDIC-
TAM INPOSVI; deinde qui prior uindi-
cauerat, dicebat QVANDO TV INIVRIA
VINDICAVISTI, D AERIS SACRAMENTO
TE PROVOCO; aduersarius quoque
dicebat similiter ET EGO TE; scilicet
(si de re maioris quam M aeris age-
batur, D, si de mtnoris,) L asses
sacramenti nominabant ; deinde
eadem sequebantur quae cum in
personas ageretur; postea praetor
secundum alterum eorum uindicias
dicebat, id est interim aliquem pos-
seseorem constituebat, eumque iube-
bat praedes aduersario dare litis et
uindiciarum, id est rei et fructuum ;
alios autem praedes ipse praetor ab
SACRAMENTUM.
469
Pinaria, before which the judex
was named at once. If the sub-
ject of dispute was worth less than
a thousand asses, the stake, as
before mentioned, was only fifty.
After the judex was named, they
gave mutual notice to appear before
him on the next day but one. At
the appearance before the judex,
before the case was fully developed,
it was stated in a concise and
summary form, and this summary
statement was called causae con-
jectio.
$ 16. When the sacramentum
was a real action, movables and
animals that could be brought or
led into court were claimed in pre-
sence of the praetor in the follow-
ing fashion. The claimant held a
wand, and grasping the slave or
thing over which he claimed do-
minion, said: ‘This man I claim,
as proprietor, by due acquisition,
by the law of the Quirites. So as I
said, see! I have covered him with
my spear, whereupon he laid his
wand upon the man. The ad-
versary then said the same words
and performed the same acts.
After both had claimed dominion,
the praetor said: ‘ Both claimants
quit your hold,’ and both quitted
hold. Then the first claimant said,
addressing the second: ‘ Answer
me, will you state on what title you
found your claim ?’ and he replied :
‘I perfected my title when I covered
him with my spear.’ Then the first
claimant said: ‘Since you claim
him in defiance of law, I challenge
you to stake five hundred asses
upon the issue of a trial,’ to which
the other answered, ‘I accept the
challenge.’ Or else they wagered
fifty asses. Then ensued the same
ceremonies as in a personal action.
The praetor then awarded to one
of the claimants possession of the
thing pending the suit, and made
479
utroque accipiebat sacramenti, quod
id in publicum cedebat. festuca
autem utebantur quasi hastae loco,
Signo quodam iusti dominii; quod
"mazime sua esse credebant quae ex
hostibus cepissent; unde in centum-
wiralibus iudiciis basta praeponitur.
$17. Si qua res talis erat, ut sine
incommodo non posset in ius adferri
uel adduci, ueluti si columna aut
grex alicuius pecoris esset, pars
aliqua inde sumebatur; deinde in
eam partem quasi in totam rem
praesentem fiebat uindicatio. itaque
ex grege uel una ouis aut capra in
ius adducebatur, uel etiam pilus
inde sumebatur et in ius adfereba-
tur, ex naue uero et columna aliqua
pars defringebatur. similiter si de
fundo uel de aedibus siue de heredi-
tate controuersia erat, pars aliqua
inde sumebatur et in ius adferebatur
et in eam partem perinde atque in
totam rem praesentem fiebat uindi-
catio, ueluti ex fundo gleba sume-
batur et ex aedibus tegula, et si
de hereditate controuersia erat,
aeque
(48 wersus in C perierunt)
qualem — capiendum
indicio|—die xxx ad iudicem capi-
endum praesto esse de|bebant.
DE ACTIONIBUS.
[rv. §§ 10-17.
him bind himself with sureties to
his adversary to restore both the
subject of dispute and the mesne
profits or value of the interim
possession, in the event of losing the
cause. Both parties gave pledges
to the praetor for the penal sum
which the loser was to forfeit. The
wand or straw which they wielded
represented a lance, the symbol of
absolute dominion, for the best
title to property was held to be
conquest. Accordingly the law of
property is administered in the
Centumviral court at the present
day under the symbol of a lance.
$ 17. If the subject of dispute
was such as could not conveniently
be carried or led before the praetor,
a portion was brought into court,
and the formalities were enacted
over it as if it was the whole. If
it was & flock of sheep or herd of
goats, & single sheep or goat, or a
single tuft of hair was brought; if
it was a ship or column, a fragment
was broken off and brought; if it
was land, a clod ; if it was a house,
a tile; if it was an inheritance. . . .
on the thirtieth day when they were
bound to appear in court to receive
& judge.
$ 18. The sacramentum or stake was originally deposited with
the Pontifex and applied, when forfeited, to meet the expenses of
the public sacrifices; whence its name.
Afterwards, instead of an
actual deposit, security [praedes— prae-vades] for the penal sum
was given by both parties to the praetor.
In the ceremony as described by Gaius we may distinguish
three stages: first, an oral pleading or altercation, alluded
rv. $$ 18-20.] CONDICTIO. 471
to in later statute-process by the words sicut dixi; ‘secondly,
& trial by battle, the original method of deciding disputed rights;
and thirdly, the reference to peaceful adjudication. We may sup-
pose that on some memorable day in the progress of civilization,
before the combat had terminated fatally to one of the combatants,
some Numa Pompilius, of sufficient authority to make so great an
innovation, interposed and induced the parties to refer the dispute
to arbitration. The case would afterwards serve as a model and
precedent to future litigants; but, from a superstitious fear of losing
the sanction of immemorial custom, the earlier stages of the pro-
cess would stil continue to be mimicked in solemn pantomime.
So, in English law, trial by Wager of battle, introduced by William
the Conqueror, was first partially superseded by the Grand assize,
or trial by jury, an alternative substituted by Henry II, and was
finally abolished in the reign of George III. ‘The tenant [defen-
dant] shall not be received to wage battle, nor shall issue be
joined, nor trial had, by battle, in any writ of right,’ 59 Geo. ITI,
ch. 46.
The use of the rod or wand as representative of the spear, the
symbol of dominion, may be paralleled in English law by the deli-
very of a staff as the symbol of power and possession in the convey-
ance of copyholds. ‘The conveyance of copyhold estates is usually
made from the seller to the lord or his steward by delivery of a rod
or verge, and then from the lord to the purchaser by redelivery of
the same in the presence of a jury of tenants,’ Blackstone, 2, 20.
§ 16. The specification of the title or ground of claim (expressio
causae) in a real action (secundum suam causam, sicut dixi) was
probably limited to actions where the subject claimed was a person,
and was then designed to distinguish whether the person was
claimed as a son, wife, bondsman (mancipium), or slave. See 1 $ 184,
comm. Perhaps, however, it was universally required in Statute-
process though not in the formulary system, 2 $ 48, comm.
CONDICTIO.
$ 18. Condicere autem denuntiare
est prisca lingua. itaque haec
quidem actio proprie condictio
uocabatur; nam actor aduersario
denuntiabat, ut ad iudicem capien-
dum die Xxx adesset. nunc uero
non proprie condictionem dicimus
$18. Condicere in old Latin
was equivalent to denuntiare, to
give notice. Hence this action was
appropriately called condictio (no-
tice), for the plaintiff used to give
notice to the defendant to appear
before the praetor on the thirtieth
472
actionem in personam (esse, gua)
intendimus DARI NOBIS OPORTERE ;
nulla enim hoc tempore eo nomine
denuntiatio fit.
$ 19. Haec autem legis actio
constituta est per legem Siliam et
Calpurniam, lege quidem Silia
certae pecuniae, lege uero Cal-
purnia de omni certa re.
$ 20. Quare autem haec actio
desiderata sit, cum de eo quod
nobis dari oportet, potuerimus aut
sacramento aut per iudicis postula-
tionem agere, ualde quaeritur.
DE ACTIONIBUS.
[1v. $$ 18-20.
day to receive a judge. The
name is now applied with less
propriety to a personal action by
which we sue for a transfer of
property, for notice forms no part
of the procedure.
§ 19. This form of statute-process
was created by the lex Silia and lex
Calpurnia, being prescribed by the
lex Silia for the recovery of a cer-
tain sum, and extended by the lex
Calpurnia to the recovery of a oer-
tain thing.
$ 20. Why & new action was
needed, when transfer of property
could be demanded either by Sacra-
mentum or by Judicis postulatio, is
canvassed.
After completing his aecount of Sacramentum, Gaius proceeded
to explain the nature of Judicis postulatio. Of its process we have
a fragment in the formula derived from Valerius Probus, Te, Praetor,
judicem arbitrumve postulo uti des, ‘I pray you, Praetor, to appoint
an arbiter or judge. It was apparently the prototype of actions
ex fide bona, that is, of actions which required an equitable balancing
of opposite claims, and an assessment by the judex of the damages,
if any, due to the plaintiff. The actions Finium regundorum,
Familiae herciscundae, Aquae pluviae arcendae, de arboribus succisis,
fiduciae, which are mentioned in the Twelve Tables, appear to have
been tried by an arbiter or arbiters, that is, to have been forms of
Judicis postulatio. For an account of views of different writers
respecting the nature of judicis postulatio see Muirhead, Roman
Law, $ 35.
The Condictio was unknown to the Twelve Tables, having been
created by the lex Silia about s.c. 244, and extended by the lex
Calpurnia about s.c. 284. Its distinctive feature appears to have
been the sponsio and restipulatio, § 18, a wager or verbal contract
conditioned for the forfeiture by the vanquished party of one third
of the sum in dispute, in addition, on the part of the defendant, to
the original debt. The stake or penalty is called by Cicero legitima
pars, * statutable sum :* Pecunia petita est certa ; cum tertia parte
sponsio facta est... . Pecunia tibi debebatur certa quae nunc
petitur per judicem, in qua legitimae partis sponsio facta est, Pro
Iv. $$ 18-20. | CONDICTIO. 473
Roscio, 4, 5: whence we may infer that it was fixed by the lex
Sila, the statute which created the procedure by condictio.
At this period the Sacramentum would be practically confined to
Real actions before the Centumviral Court: Condictio would be the
appropriate Personal action for recovering a certain sum or thing
due upon a unilateral contract, real (mutuum), verbal (stipulatio), or
literal (expensilatio); and Judicis postulatio the appropriate Personal
action for recovering an uncertain sum due on a bilateral contract,
and enforcing obligations to perform (facere) rather than to convey.
The gist (gite) of the civil action of Condictio, i. e. the circum-
stance whereon it lay, the title or ground of action, was the increase
of the defendant's fortune or patrimony by the reduction of the
plaintiff's patrimony without any consideration or equivalent gain to
the plaintiff. This disturbance the law restored. The simplest, and
probably the earliest, instance of the principle was mutui datio, 8 $ 90.
Here the defendant's wealth is increased and that of the plaintiff
diminished by a voluntary aet of the plaintiff ; but the principle
equally covers cases where the relation is not knowingly and
intentionally initiated by the plaintiff, e.g. payment by mistake
(solutio indebiti) and failure of consideration (causa data, causa
non secuta) From mutui datio, or actual loan, the Condiction
was extended to Expensilatio and Stipulatio, both of which, pro-
bably, were imaginary loans, that is, pacts solemnized and fortified
by the fiction of a loan. We are expressly informed that this was
the case with Expensilatio, 2 $ 129, and from etymology (stips—
pecunia) and the analogy of Nexum (a fictitious weighing out of
bars of bronze), we may conjecture the same of Stipulatio.
The introduction of actions stricti juris is probably of more
ancient date than the introduction of actions based on bona fides ;
the necessity, that is, of applying the power of the State to
enforce the class of obligations pursued by Condictio was earlier
felt than the necessity of compelling men to perform their so-called
obligations ex fide bona. From the antithesis of strictum jus and
bona fides it might be imagined that trust, confidence, credit, re-
liance on good faith, were entirely foreign to civil obligations, and
were only ingredients in equitable obligations. This is the reverse
of the truth. Greater confidence (fides) is involved in mutui datio,
greater risk is incurred by the obligee, who starts by alienating his
property and making it the property of the obligor, who denudes
himself, that is, of the remedy of vindicatio, than in any other
414 DE. ACTIONIBUS. [av. $$ 18-20.
contracts, most of which leave the promisee, even before the inven-
tion of personal actions, armed, if need be, with the legal remedy
of vindicatio. Other contracts we can imagine left to the protec-
tion of the moral code, to the forum of conscience, to the sanction
of public opinion, at a time when it was felt that the immense
confidence implied in a loan for consumption could only exist under
the aegis of positive law.
When the short, sharp, and decisive remedy of a civil action had
once been invented for mutui datio, the ingenuity of contracting
parties and jurists would soon extend the remedy to other relations
by means of a fiction of mutui datio. Expensilation, then, and
Stipulation may be regarded as artifices for transferring conven-
tions, originally perhaps, from the ethical code to the legal code;
but certainly, in later times, from the laxer equitable code to the
more rigorous civil code. A great part, however, of human dealings
refuses to be governed by pre-determined conditions, and pre-
arranged, pre-capitulated stipulations. Hence alongside of stipulatio
and expensilatio existed Real and Consensual contracte; alongside
of Condietio existed Judieis arbitrive postulatio; alongside of for-
mulae stricti juris existed formulae ex fide bona.
The general difference between actiones stricti juris and actiones
ex fide bona consisted in the greater latitude of discretion allowed
to the judge in the latter. The principal specific points of difference
were the following :
(a) Actiones stricti juris are based on unilateral contracts, which
only ground an action for one of the parties: actiones ex fide bona
are based on bilateral contracts, on which both parties can bring
actio directa ; or on semi-bilateral contracts, on whieh one party can
bring actio directa, and the other actio contraria. So one-sided were
condictions or actions stricti Juris that before the time of Marcus
Aurelius a set-off or counterclaim of the defendant (compensatio)
could not be pleaded even in the form of Exceptio. Inst. 4, 6, 30.
(4) Actions stricti juris are governed by a literal interpretation of
the words of a disposition: in actions ex fide bona the judge inquires
what was the true intention of the parties; he attends not only to
express but also to implied terms of a convention, Dig. 3, 5, 6, and,
to ascertain these, takes notice of local usages, Dig. 21, 1, 81, 20.
As we distinguish between the Volition or overt act of a delinquent
and his Intention, so bona fides distinguishes between the expres-
sions of contractors or the lawgiver and their intentions. Strictum
1v.§§18-20.] ^ STRICTI IURIS, BONAE FIDEI. 475
jus adheres to a grammatical or literalistic interpretation of a dis-
position, and assumes that words exactly correspond to intentions.
It is then called summum jus: e. g. Verbis et literis et summo jure
contenditur, Cicero.
(c) The ground to support any given condictio or actio stricti juris
is precisely defined: whereas an actio ex bona fide, e.g. an actio
empti or venditi, cannot only be brought on the principal contract
—emptio venditio—for which it is appropriate but also on any
accessory conventions (pacta adjecta) and on any attendant circum-
stances of fraud (dolus) or intimidation (metus). In the later law,
however, contemporaneous conventions were treated as integral por-
tions of the contracts of jus strictum: Pacta incontinenti facta
stipulationi inesse creduntur, Dig. 12, 1, 40. Accordingly interest
as well as principal could be recovered in an action (incerti con-
dictio) on a stipulatio to pay a certain sum with an annexed
convention to pay interest at a certain rate. In the same way
accessory conventions coalesced into a single contract when annexed
to a loan: Omnia quae inseri stipulationibus possunt, eadem possunt
etiam numerationi pecuniae et ideo et conditiones, Dig. 12, 1, 7.
In the case of a loan of money, however, interest could not be
recovered on a contemporaneous convention because the only action
a loan of money could support was condictio certi: on a loan of
any other quantitas but money, interest could be recovered because
the action such a contract would support was condictio incerti,
Cod. 4, 32, 28. Savigny, § 268.
(d) The Defence in an actio stricti juris could only allege matters
which ipso jure extinguished or annihilated a claim (e. g. solutio,
acceptilatio, novatio), or, if they founded a counter-claim of the
defendant, had been disclosed to the praetor in the preliminary
pleadings (in jure) in the form of an exceptio: whereas the arbiter
who tried an actio ex bona fide could consider any counter-obliga-
tions of the plaintiff even when they were averred for the first
time in the course of the trial: Exceptio doli bonae fidei judiciis
inest, Dig. 24, 8, 21.
(e) In respect of the accessions (omnis causa) in which a defendant
was condemned, namely fructus and usurae, there was a difference
between actiones stricti juris and ex bona fide: in the former the
defendant was only liable to pay these from the date of Litis con-
testatio ; whereas in the latter he was liable from the date of Mora,
2 § 280.
476 DE ACTIONIBUS. [rv. $$ 18-20.
(f£) As all condemnations under the formulary system were in
pecuniary damages it was necessary in the event of a condemnation
that the thing in dispute should be valued in money. In actions
stricti juris the moment fixed for the valuation (aestimatio) was
Litis contestatio: in bonae fidei actions the date of valuation was
the date of Condemnatio: In hac actione sicut in ceteris bonae
fidei judiciis . . . rei judicandae tempus, quanti res sit, observatur,
quamvis in strieti juris judiciis litis contestatae tempus spectetur,
Dig. 18, 6, 83, 2. This is so uncontroverted that in another passage
which fixes the moment of condemnatio as the moment of aestimatio
in a stricti juris action, Dig. 18, 8, 8, we may have little scruple in
assuming that condemnatio is a corrupt reading for contestatio.
Both in stricti juris and bonae fidei actions if a day was fixed for
the performance of a contract, this day was the date of aestimatio :
and if a debtor was guilty of Mora, the creditor had his election
between Lis contestata and Res judicata respectively and the date
of Mora. In an action on Delict the date of Valuation was none
of these but the date of the Delict, i. e. the date of the inception of
the obligation. Savigny System, $ 275.
(g) Another difference related to Juramentum in litem, i.e. the
plaintiffs sworn declaration of the value of the thing in dispute.
When a defendant contumaciously disobeys a judge’s order in a certain
class of bona fide actions where judgment is preceded by an order
(arbitrium) of the judex, namely actiones Arbitrariae, including Real
actions and Personal actions brought to obtain Restitutio or Exhi-
bitio; or when by dolus or culpa lata the defendant has disabled
himself from obeying the judge’s order; then the oath of the
plaintiff as to the value of the subject of litigation fixes the amount
of damages (aestimatio) in which the defendant will be condemned.
Examples of actions brought to recover Restitutio are the actions
Depositi, Commodati, Locati, Dotis, Tutelae, Doli, Metus, and the
interdict Unde vi. In bonae fidei actions brought to obtain Traditio,
e.g. in Emptio Venditio, such juramentum in litem was inadmis-
sible. In condictions or actions stricti juris it was never admissible ;
except that when the subject of litigation had ceased to exist by the
culpa of the defendant, e.g. in the actio legis Aquiliae, and litis
aestimatio would otherwise be impossible to the judex, he might
use the plaintiff's oath as a subsidiary evidence for ascertaining
what was the selling value of the thing that had been destroyed or
what therein was the plaintiff's exceptional interest.
rv. $$ 21-25.] MANUS INIECTIO. 477
(4) If performance of a contract was due at a certain place, a
bonae fidei action could be brought to recover damages for non-per-
formance at any other forum as well as at the forum of the specified
place, whereas a plaintiff who brought an action stricti juris at any
other forum than the forum of the place where the contract was to
be executed would have incurred the penalties of Plus petitio: and
to avoid this was obliged to bring his action in the form of actio
Arbitraria, 4 6 58, comm. Inst. 4, 6, 88.
The division of actions into stricti juris and bonae fidei properly
speaking only embraces Personal actions founded on contract and
quasi-contract with a formula in jus concepta: that is to say, Real
actions, Personal actions with a formula in factum concepta, Personal
actions on delict, praetoria cognitio (cognizance by the praetor with-
out reference to a judex) were neither stricti juris nor ex bona fide.
It is probable however that civil delictual actions (the actions furti
nec-manifesti and legis Áquiliae) were governed by the rules of
actions stricti juris; while Real actions, and actions in faetum, and
cognitio praetoria were governed by the rules of actions ex bona
fide. Vangerow, § 189. Cf. Inst. 4, 6, 28-80.
MANUS INIECTIO.
§ 21. Per manus inieetionem ae-
que (de) his rebus agebatur de qui-
bus ut ita ageretur, lege aliqua
eautum est, ueluti iudicati lege
xir tabularum. quae actio talis
erat: qui agebat, sic dicebat
QVOD TY MIHI IVDICATVS (siue
DAMNATVS) ES SESTERTIVM X MILIA,
QVANDOC NON SOLVISTI, OB EAM
REM EGO TIBI SESTERTIVM X
MILIVM IVDICATI MANVM INICIO,
et simul aliquam partem corporis
eius prekendebat. nec licebat iudi-
cato manum sibi depellere et pro se
lege agere; sed uindicem dabat qui
pro se causam agere solebat; qui
uindicem non dabat, domum duce-
batur ab actore et uinciebatur.
§ 22. Postea quaedam leges ex
alüs quibusdam causis pro iudicato
manus iniectionem in quosdam de-
$ 21. Manus injectio (arrest) was
the form of action prescribed by
law in certain circumstances ; as,
for instance, against a judgment
debtor by the law of the Twelve
Tables. The procedure was as fol-
lows: the plaintiff said, * Whereas
you have been adjudged or con-
demned to pay me ten thousand
sesterces which sum you have
failed to pay, therefore I arrest
you as judgment debtor for ten
thousand sesterces,’ and at the same
time laid hands on him; and the
debtor was not allowed to resist the
arrest, or defend himself in his own
person, but gave a vindex to advo-
cate his cause, or, in default, was
taken prisoner to the plaintiff's
house, and put in chains.
§ 22. Afterwards Manus injectio
was given by various laws against
quasi judgment debtors, as by the
478
derunt: sicut lex Publilia in eum
pro quo sponsor dependisset, si in
Bex mensibus proximis quam pro eo
depensum esset, non soluisset spon-
sorl pecuniam ; item lex Furia de
sponsu aduersus eum qui & sponsore
plus quam uirilem partem exegisset ;
et denique conplures aliae leges in
multis causis talem actionem dede-
runt.
$ 23, Sed aliae leges ex quibus-
dam causis constituerunt. quasdam
actiones per manus iniectionem,
sed puram, id est non pro iudicato:
ueluti lee. (Furia) testamentaria
aduersus eum qui legatorum nomine
mortisue causa plus Àf assibus ce-
pisset, cum ea lege non esset ex-
ceptus, ut ei plus capere liceret;
item lex Marcia aduersus faenera-
tores, ut 81 usuras exegiesent, de his
reddendis per manus iniectionem
cum eis ageretur.
$ 24. Ex quibus legibus et si
quae aliae similes essent, cum age-
batur, (reo licebat) manum sibi
depellere et pro se lege agere.
nam et actor in ipsa legis actione
non adiciebat hoc uerbum PRO
IVDICATO, sed nominata causa ex qua
agebat, ita dicebat OB EAM REM EGO
TIBI MANYM INICIO; cum hi quibus
pro iudicato actio data erat, no-
minata causa ex qua agebant, ita
inferebant OB EAM REM EGO TIBI PRO
IVDICATO MANVM INICIO. nec me
praeterit in forma legis Furiae tes-
tamentariae PRO IVDICATO uerbum
inseri, cum in ipsa lege non sit;
quod uidetur nulla ratione factum.
$ 25. Sed postea lege Vallia, ex-
cepto iudicato et eo pro quo de-
pensum est, ceteris omnibus cum
quibus- per manus iniectionem age-
batur, permissum est sibi manum
depellere et pro se agere. itaque
iudicatus et is pro quo depensum
est, etiam post hanc legem uindicem
dare debebant, et nisi darent,
domum ducebantur. idque quam-
diu legis actiones in usu erant,
DE ACTIONIBUS.
[1v. 8 21-25,
lex Publilia against the principal
whose debt had been paid by his
sponsor, unless he indemnified his
sponsor within six months from the
payment of the debt; by the lex
Furia de Sponsu against the cred-
itor who had exacted from one of
several sponsors more than his rat-
able share; and by various other
laws against various other persons,
§ 23. Other laws gave Manus in-
jectio simple, that is, not to quasi
judgment creditors, against certain
other persons: as the lex Furia tes-
tamentaria against the leyatee or
donee in contemplation of death
who received more than a thousand
asses not being included in certain
privileged classes; and the lex
Marcia compelled usurers to refund
by this process.
$ 24. These laws and certain
others permitted the defendant to
resist arrest and defend himself in
person, for the plaintiff could not
arrest him as quasi judgment debtor,
but, after naming his cause of action,
said simply, ‘I therefore arrest you ;’
whereas, if he proceeded as quasi
judgment creditor, after naming the
cause he said, ‘ Therefore I arrest
you as quasi judgment debtor. I
am aware that in proceeding under
the lex Furia testamentaria the
plaintiff added the words, ‘ As quasi
judgment debtor,’ though they are
not inserted in the law; but I be-
lieve that this could not be justified.
§ 25. In more recent times the
lex Vallia permitted all defendants
sued by manus injectio, except the
judgment debtor and the principal
indebted to his sponsor, to resist
arrest and defend themselves in
person, Accordingly, the judgment
debtor in the actio judicati and the
principal indebted to his sponsor
had to give a vindex or were taken
to prison as long as statute-process
rv. $$ 21-25.] MANUS INIECTIO. 479
semper ita obseruabatur; unde was in force, and at the present day
nostris temporibus is cum quo iudi- must give bail for the payment of
cati depensiue agitur, iudicatum the sum in which they may be con-
solui satisdare cogitur. demned.
For the proceedings in Manus injectio see 8 $ 77, comm.
Manus injectio seems to have had two meanings:
(1) Self-help, or redress of the plaintiff by his own act, when his
night was incontestable and the defendant submitted. We certainly
find manus injectio spoken of by non-juristic writers as an act of
self-redress : e.g.
Injiciam dominas in mea jura manus, Ovid, Am. 2, 4.
Clamarem, Meus est, injiceremque manus, Ovid, Her. 12.
In this case the award of a magistrate (addictio) would not be a
necessary preliminary to abduction (secum duci): but self-redress
was @ remedy only tolerated when society was very loosely consoli-
dated ; and abductio without preceding addictio must at an early
period have become illegal. 'The final blow struck by the state at
Self-redress was the constitution of the three emperors, A.p. 389,
6 209, comm.
(2) Manus injectio ceased to be a mere act of self-redress, and
became the first stage of a statute-process (legis actio) whenever a
Vindex interposed, or, in manus injectio pura, whenever the alleged
debtor became defendant in an action, Ihering, 11, c.
In explaining the nature of Nexum, 8 $$ 88, 89, comm. I have
assumed with Savigny, that Manus injectio implied a preceding
Condictio in which the debtor became judicatus. The necessity of
this preliminary Condictio, however, is not admitted by Huschke:
and certainly the statutes which introduced Manus injectio pro judi-
cato and Manus injectio pura seem to have intended that Manus
injectio should be the procedure in the first instance without any
antecedent Condictio or Sacramentum. Perhaps Nexum was treated
as equivalent to in jure confessio (aes confessum) and therefore
at once grounded a manus injectio. Nexum then would be a
fiction not of Mutuum but of in jure confessio of Mutuum.
§§ 22-25. The lex Furia de sponsu (3 § 121), supposed to have
been passed in s.c. 95, limited the obligation of the sponsor
and fidepromissor to two years, and divided it equally among all the
sponsores and fidepromissores without regard to their solvency.
The word exegisset suggests that the lex Furia de sponsu was
not a lex perfecta ;—that the limitation of the sponsor's liability to a
480 DE ACTIONIBUS. [rv. $$ 21-25.
proportionate part of the principal debt was only effected by a penalty
being imposed on the creditor who exacted the whole obligation.
If we assume with Ihering that the lex Furia de sponsu and the
lex Furia testamentaria (2, 225) were separate clauses of the same
enactment, we can understand why manus injectio pro judicato,
which was expressly made the remedy in lex Furia de sponsu, was
extended by interpretation to lex Furia testamentaria: although
this extension, according to Gaius, $ 24, violated the rules of
Statute-process, which ought to rest in its minutest details on the
express provisions of a statute.
The lex Marcia is supposed to have been passed between B. c. 200
and B.c. 100. Its poena, like that of lex Furia testamentaria,
was quadruplum, Cato de Re Rustica, quoted by Gellius. Penal
actions maintainable by a common informer, were called Populares ;
and the informer, from the amount of the penalty, was called
Quadruplator.
Some hold that execution and proceedings in bankruptcy in the
old Roman law were always directed immediately against the person
of the debtor; execution against his property, under the name of
Bonorum venditio, 8 $ 77, being a later invention. Savigny, how-
ever, supposes that execution against the person was confined with
certain exceptions to judgments on an actual loan of money, and
that execution on other judgments was always agaiust the estate:
and this view, as we have seen, throws light on an obscure pro-
blem, the nature of the ancient contract of Nexum, and renders
intelligible the Sc. Macedonianum.
The cases, other than a judgment debt, in which the creditor
might proceed by Manus injectio seem to be, besides those men-
tioned in the text, (1) Furtum manifestum, 8 § 189;
(2) Resistance to in jus vocatio; Si calvitur pedemve struit,manum
endo jacito, Fragment of the Twelve Tables. ‘If the defendant
on being summoned to appear before the magistrate tergiversates
or attempte to flee, the plaintiff may proceed to Manus in-
jectio.’
We may conjecture also that avoidance of in jus vocatio by
latitation or keeping house rendered a defendant liable to manus
injectio. Such is the probable explanation of two fragments of the
Twelve Tables: Siin jus vocat, ni it, antestator, igitur em capito. .. .
Cui testimonium defuerit, is tertiis diebus ob portum obvagulatum
ito. ‘Ona service of summons to appear before the magistrate, if
rv. $$ 21-25.] . MANUS INIECTIO. 481
the defendant refuse obedience, the plaintiff shall obtain attestation
of the fact, and then take him by force. In default of such attesta-
tion (i.e. if the defendant avoid service by keeping out of the way)
the plaintiff on three market-days shall stand before the defendant's
door and wawl (loudly summon him to appear (?), and after this
the defendant shall be liable to manus injectio)? [Compare the
Hindoo custom of ‘sitting d’harna,’ i.e. fasting at the door of a
debtor. Maine’s Early History of Institutions. |
(3) Forfeiture of the condition of the solemn contract called
Nexum. This was a symbolic contract based on the fiction of a
money loan (mutuum), and on Condemnation in a Condictio, or,
possibly, on mere default in performance, the debtor fell into the
position of a defendant (pro judicato) who has suffered judgment
on a money loan, 3 §§ 88, 89, comm.
(4) Damnum injuria under lex Aquilia, $ 171, comm.
(5) and Legatum per damnationem. See $ 171, comm.
With liability to Manus injectio for a quasi judgment debt we may
compare the arrest of an absconding debtor in the English law by a
writ of capias ad respondendum. As the Roman debtor had to find a
vindex or responsible representative, so the English debtor must either
remain in custody or put in bail, that is, find sureties who will under-
take that, if judgment is obtained against him, either he shall surren-
der into custody, or shall pay the debt and costs recovered, or that they
themselves will pay them for him. The Roman Vindex apparently
became responsible for twice the amount of the original debt.
$ 25. Bethmann-Hollweg, 2 $ 111, conjectures that actio judicati,
when the judicium was legitimum ($ 103) was fictitious, and had
a formula like the following: Quod Numerius Negidius Aulo
Agerio sestertium decem millia condemnatus est, Si Aulus Agerius
Numerio Negidio manus injecisset: Tum quicquid Numerium
Negidium Aulo Agerio dare facere oporteret: Ejus, judex, Nume-
rium Negidium Aulo Agerio duplum condemna. If the judicium
was imperio continens, he supposes that the actio judicati was in
factum with the following formula: Si paret Numerium Negidium
Aulo Agerio sestertium decem millia condemnatum esse eamque
pecuniam intra legitimum tempus solutam non esse: Quanti ea
res erit, tantae pecuniae duplum judex Numerium Negidium Aulo
Agerio condemna. Under the emperors the actio judicati as a
means of execution was superseded by Pignoris capio. Thirty
days were allowed for payment, 3 § 78; then interest began to
Ii
482
DE ACTIONIBUS.
[1v. 8$ 26-29.
run at 24 per cent. per annum (duo centesimae per month) which
Justinian reduced to 12 p. c.
C. 7, 54, 2.
PIGNORIS CAPIO,
$ 26. Per pignoris capionem lege
agebatur de quibusdam rebus mori-
bus, (de quibusdam rebus) lege.
$ 27. Introducta est moribus rei
militaris. nam et propter stipen-
dium licebat militi ab eo qui (td)
distribuebat, nisi daret, pignus ca-
pere; dicebatur autem ea pecunia
quae stipendti nomine dabatur, aes
militare. item propter eam pecu-
niam licebat pignus capere ex qua
equus emendus erat; quae pecunia
dicebatur aes equestre. item propter
eam pecuniam ex qua hordeum
equis erat conparandum ; quae
pecunia dicebatur aes hordiarium.
$ 28. Lege autem introducta est
pignoris capio ueluti lege x11 tabu-
larum aduersus eum qui hostiam
emisset nec pretium redderet; item
aduersus eum qui mercedem non
redderet pro eo iumento quod quis
ideo locasset, ut inde pecuniam
acceptam in dapem, id est in sa-
crifiium, inpenderet. item lege
censoria data est pignoris capio
publicanis uectigalium publicorum
populi Romani aduersus eos qui
aliqua lege uectigalia deberent.
$ 29. Ex omnibus autem istis
causis certis uerbis pignus capieba-
tur, et ob id plerisque placebat hanc
quoque actionem legis actionem
esse; quibusdam autem (contra)
placebat, primum quod pignoris
capio extra ius peragebatur, id est
non apud praetorem, plerumque
etiam absente aduersario, cum alio-
quin ceteris actionibus non aliter
uti possent quam apud praetorem
praesente aduersario, praeterea quod
nefasto quoque die, id est quo non
licebat lege agere, pignus capi
poterat.
$ 26. Pignoris capio (distress)
was introduced in some cases by
custom, in others by law.
$ 27. By custom, in obligations
connected with military service;
for the soldier could distrain upon
his paymaster for his pay, called
aes militare; for money to buy &
horse, called aes equestre; and for
money to buy barley for his horse,
called aes hordiarium.
$ 28, The law of the Twelve
Tables rendered liable to distress
on default of payment the buyer of
& victim and the hirer of a beast of
burden lent to raise money for a
sacrifice. The lex Censoria gave
the power of distress to the farmers
of the public revenue.
$ 29. As in all these cases the
distreinor used a set form of words,
ihe proceeding was generally con-
sidered a form of statute process,
Some, however, held otherwise,
because it was performed in the
abrence of the praetor and generally
of the debtor; whereas, the other
forms of statute process could only
be enacted in the presence of the
praetor and the adversary; besides,
it could take place in the juridical
vacation (2 $ 279), that is, in days
unavailable for statute process.
rv. §§ 26-29.] PIGNORIS CAPIO. 483
Distress in English law bears a certain resemblance to Execution.
Each is the application of constraint to a defendant's will by seizure
of his goods. But making a distress is the act of a private person,
and precedes the commencement of an action: execution follows
after judgment obtained in an action, and is the act of the executive
at the command of the sovereign. "The pignoris capio of the older
Roman law corresponded to distress; the pignoris captio of the
formulary system generally was a mode of execution.
Perhaps pignoris capio, like manus injectio, was originally an act
of Self-redress, and did not amount to legis actio unless it led to a
suit in which the distreinor was plaintiff.
Pignoris capio in the older system was a remedy allowed in cases
of a public character, that is, in claims relating to military service,
to religion, or to the revenue. In the first case the remedy was
established by custom, that is, was anterior to the Twelve Tables ; in
the second case it was given by the Twelve Tables; in the third
case it was created by law subsequent to the Twelve Tables.
We have mention of the aes hordearium, $ 27, in Livy's account
of the Servian constitution, Livy 1. 48. * Each soldier received
ten thousand asses for the purchase of & horse, and for its main-
tenance a widow was assigned, who was bound to pay two thousand
asses a year.’
The institution appears to have been transplanted from Greece.
Cicero mentions it as in force at Corinth, De Republica, 2, 20.
*'Tarquinius Priscus instituted the present organization of the
cavalry. At Corinth, whence be came, there was a practice of
allotting horses at the public expense and taxing the childless
and widows for their maintenance. The private persons thus
appointed military paymasters appear to have been called tribuni
aerarü, Gellius 7, 10. In later times soldiers were paid by the
Quaestors from the public treasury.
We have something similar in the Laws of Plato: wepi 98 ....
Aetrovpytáv, ómóca wept Ovolas elpqvwijs 7) wokepsxGy eladopáv elvexa,
qávrev Tür ToovTey Thy TpaTny avayxny larnv evar ris Cyulas rois
[de] py weOopdvors, evexupactay rovrors ols àv móAis dpa xal vdpos
elexpárrew spoordrry, Tav d& dreWovvTwy rais évexupacias mpacw
tay evextpwr etvat, 7d de vduiopa ylyverOa rj wéAe, Laws, 12, 4.
‘If a public duty rélating to religion or war is unperformed, the
first stage of coercive penalty shall be defeasible by submission
of the defaulter, and his goods shall be merely taken in distress
I12
DE ACTIONIBUS. [rv. $$ 30-38.
484
by the lawfully appointed official; but if he continue contumacious,
the distress shall be sold and the proceeds shall be confiscated.’
§ 28. Raising money for a sacrifice by letting out a beast of
burden seems such an exceptional circumstance that we may con-
jecture it was only a fictitious averment permitted for the purpose
of grounding an action. Compare the fictitious averment, permitted
for the purpose of grounding the jurisdiction of the court of Ex-
chequer that the plaintiff was the king’s debtor and, by reason of
the defendant’s default, was unable to pay his debt to the king.
A praediator is defined by Gaius, qui mercatur a populo, above,
2 $61. A lex praediatoria is mentioned by Suetonius: Ad eas
rei familiaris angustias decidit, ut cum obligatam aerariis fidem
liberare non posset, in vacuum lege praediatoria venalis pependerit
sub edicto praefectorum, Claudius 9. ‘He was so impoverished,
that he could not discharge his obligation to the treasury, and
the prefects advertised his goods for sale without reserved price,
as provided by lex praediatoria) On the first day of a sale the
amount of the debt due to the state was announced as a reserved
price, or minimum for which the goods would be sold. If no
bidder appeared on these terms, the goods were offered on & sub-
sequent day without reserve (in vacuum). Kuntze.
DE FICTIONIBUR.
$ 30. Sed istae omnes legis ac-
tiones paulatim in odium uenerunt.
namque ex nimia subtilitate uete-
rum qui tunc iura condiderunt, eo
res perducta est, ut uel qui mini-
mum errasset, Jitem perderet. ita-
que per legem Aebutiam et duas
Iulias sublatae sunt istae legis ac-
tiones effectumque est, ut per con-
cepta uerba, id est per formulas
litigemus.
6 31. Tantum ex duabus causis
permissum est lege agere: damni
infecti et si centumuirale iudicium
futurum est. sane quidem cum ad
centumuiros itwr, ante lege agitur
sacramento apud praetorem urba-
num uel peregrinum [praetorem].
damni uero infecti nemo uult lege
agere, sed potius stipulatione quae
in edicto proposita est, obligat ad-
uersarium suum, idque et commo-
$ 30. But all these branches of
statute process fell gradually into
great discredit because the excessive
literalism of the ancient jurists made
the slightest error fatal; and they
were abolished by the lex Aebutia
and the two leges Juliae, which in-
troduced in their stead the system
of formulas or variable written in-
structions of the praetor to the
judex.
§ 31. Two cases only were re-
served for statute process, appre-
hended damage and centumviral
causes. The latter are still preceded
by statute process of sacramentum
before the praetor urbanus or pere-
grinus, as may happen. For pro-
tection against apprehended damage
a plaintiff no longer resorts to statute
process, but stipulates to be indem-
nified by the defendant in the man-
rv. $$ 30-38. ]
dius ius et plenius est. per pignoris
capionem ——|
(23 uersus in C legi nequeunt)
— ——aápparet.
$ 32. Item in es forma quae
publicano proponitur, talis fictio
est, ut quanta pecunias olim, si
pignus captum esset, id pignus is a
quo captum erat, luere deberet, tan-
tam pecuniam condemnetur.
$33. Nulla autem formula ad
condictionis fictionem exprimitur.
siue enim pecuniam siue rem ali-
quam certam dejitam nobis peta-
mus, eam ipsam DARI NOBIS OPOR-
TERE intendimus; nec ullam adiun-
gimus condictionis fictionem. itaque
simul intellegimus eas formulas qui-
bus pecuniam aut rem aliquam nobis
dari oportere intendimus, sua ui ac
potestate unlere. eiusdem naturae
sunt actiones commodati, fiduciae,
negotiorum gestorum et aliae in-
numerabiles.
§ 34. Habemus adhuc alterius
generis fictiones tn quibusdam for-
mulis, ueluti cum is qui ex edicto
bonorum possessionem petzit, ficto
se herede agit. cum enim praetorio
iure, non legitimo succedat in locum
defuncti, non habet directas actiones,
et neque id quod defuncti fuit, po-
test intendere 8VVM ESSE, neque td
quod ei debebatur, potest intendere
(DARI) 81BI OPORTERE ; itaque ficto
se herede intendit uelut hoc modo
IVDEX ESTO. 8I 4. | AGERIVS (id
est si ipse actor) L. TITIO HERES
ESSET, TVM (SI EVM) FYNDVM | DE
QVO AGITVR EX IVRE QYIRITIVM
BIVS E88E OPORTERET; et si— de
——, | praeposita simili fictione
heredis ita subicitur TVM 81 PARE|RET
N. NEGIDIVM (4.) AGERIO SESTER-
TIVM X MILIA DARE OPORTERE.
DE FICTIONIBUS.
485
ner provided by the edict, whereby
he is put to less trouble and obtains
ampler redress.
$ 32. The formula provided for
the farmer of the revenue directs
ihe debtor to be condemned in the
sum for which formerly, after seizure
of his goods, he would have had to
ransom the distress.
$ 33. No formula is moulded on
a hypothetical condictio; for when
we sue for & certain thing or sum
of money, our intentio names the
very thing or sum for which we sue,
without any reference to an imagined
condictio: so that the modern con-
dictio is not based on the ancient
Statute process. Similarly indepen-
dent of the elder system are the
actions of Loan for use, Trust, Un-
authorized Agency, and innumer-
able others.
§ 34. The other kind of fiction is
employed when the bonorum pos-
Sessor or praetorian successor is
feigned to be civil heir. Being only
the praetorian, not the legal, suc-
cessor, he has no direct action, and
can neither claim to be [Quiritary]
proprietor of the things belonging
to the deceased, nor to be [by civil
law] obligee of the debts due to
him. Accordingly, the intentio
supposes him to be civil heir, and
runs as follows: *Let C D be judex.
Supposing Aulus Agerius (plaintiff)
were the civil heir of Lucius Titius,
if in that supposition it be proved
that the land in question ought to
be his by the law of the Quirites ;’
or, in case of a debt, after a similar
hypothesis of civil succession, the
intentio proceeds: 'if in that sup-
position it be proved that Nume-
rius Negidius (defendant) ought [by
civil law| to pay to Aulus Agerius
ten thousand sesterces; then let the
defendant be condemned, &c. :
486
$ 35. Similiter et bonorum emp-
tor ficto se herede agit; sed inter-
dum et alio modo agere solet. nam
ex persona eius cuius bona emerit,
sumpta intentione conuertit con-
demnationem in suam personam, id
est ut quod illius esset uel illi dart
oporteret, eo nomine aduersarius
huic condemnetur; quae species
actionis appellatur Rutiliana, quia
& praetore P. Rutilio, qui et bono-
rum uenditionem introduxisse dici-
tur, conparata est. superior autem
species actionis qua ficto se herede
bonorum emptor agit, Seruiana
(wocatur.
$ 36. Item wsucapio fingitur in
ea actione quae Publictana) uoca-
tur. datur autem haec actio ei qui
ex iusta causa traditam sibi rem
nondum usucepit eamque amissa
possessione petit. nam quia non
potest eam EX IVRE QVIRITIVM SVAM
ESSE intendere, fingitur rem usuce-
pisse et ita quast ex iure Quiritium
dominus factus esset intendit, ueluti
hoc modo IVDEX ESTO. 8I QVEM
HOMINEM A. AGERIVS EMIT (ET)
IS EI TRADITVS EST, ANNO POSSE-
DISSET, TVM SI EVM HOMINEM DE
QVO AGITVR EX IVRE QVIRITIVM
EIVS ESSE OPORTERET et reliqua.
$ 37. Item ciuitas Romana pere-
grino fingitur, si eo nomine agat
aut cum eo agatur, quo nomine
nostris legibus actio constituta est,
si modo iustum sit eam actionem
etiam ad peregrinum extendi: ue-
luti si furti agat peregrinus aut
cum eo (agatur. nam si cum pere-
grino) agatur, formula ita concipi-
tur IVDEX ESTO. SI PARET (4
DIONE HERMAEI FILIO FVRTVM
FACTVM ESSE L. TITIO, aut SI PA-
RET OPE) CONSILIOVE DIONIS HER-
MAKI FILIJ FVRTVM FACTVM ESSE
DE ACTIONIBUS,
[1v. $$ 30-38.
$35. So the purchaser of a
bankrupt’s estate may either sup-
pose himself to be civil heir, or may
use a different form [feigning to be
procurator of the insolvent]: he may
name the insolvent in the intentio
and himself in the condemnatio,
requiring the defendant to restore
or pay to himself any property that
belonged or any debt that was due
to the insolvent. This form of ac-
tion is called Rutilian from the
praetor Rutilius who invented exe-
cution in bankruptcy against the
estate: the action wherein the
plaintiff feigns himself civil heir is
called Serviana.
§ 36. So there is a fiction of usu-
capion in the Publician action,
whereby a man claims a thing which
had been delivered to him for a just
consideration and of which he lost
possession before he had acquired
property by usucapion. Being un-
able to call it his property by the
law of the Quirites, he is supposed
to have acquired it by usucapion
and his intentio rans as follows:
‘Let C D be judex. Supposing
that the slave who was sold and
delivered to Aulus Agerius had
continued during a year in his pos-
session, if in that case the slave
ought to have belonged to Aulus
Agerius by the law of the Quirites,
then condemn the defendant,’ &c.
§ 37. So an alien is feigned to be
& Roman, if he sue or be sued in an
action which may justly be extended
to aliens, For instance, if an alien
sues or is sued for theft, in the
latter case the formula runs as fol-
lows: ‘Let CD be judex. If it be
proved that Dio son of Hermaeus
stole—or, if it be proved that Dio
son of Hermaeus aided and abetted
in stealing—from Lucius Titius a
golden cup, for which, if he had
been a Roman citizen he would
have had to make composition for
Iv. $$ 30-38.]
PATERAE AVREAE, QVAM OB REM
EVM, 8I CIVIS ROMANVS ESSET, PRO
FVRE DAMNVM DECIDERE OPORTERET
et reliqua. item si peregrinus furti
agat, ciuitas ei Romana fingitur.
similiter si ex lege Aquilia peregri-
nus damni iniuriae agat aut cum
eo agatwr, ficta ciuitate Romana
iudicium datur.
$ 38. Praeterea aliquando fingi-
mus adwersarium nostrum capite
deminutum non esee. nam si ex
contractu nobis obligatus obligataue
sit et capite deminutus deminutaue
fuerit, uelut mulier per coemptio-
nem, masculus per adrogationem,
desinit iure ciuili debere nobis, nec
directo intendi potest sibi dare eum
eamue oportere; sed ne in potes-
tate eius sit ius nostrum corrum-
pere, introducta est contra eum
eamue actio utilis rescissa capitis
deminutione, id est in qua fingitur
eapite deminutus deminutaue non
esse.
DE FICTIONIBUS. 487
theft, then condemn Dio son of
Hermaeus, &c. So if an alien
sue for theft or sue or be sued
under the Aquilian law for damage
to property, he is feigned to be a
Roman citizen,
§ 38. Again, we may feign that
the defendant has not been degraded
in status: for if we make a contract
with a person who afterwards is
degraded in status, as an (indepen-
dent) female by subjection to hand,
an independent male by adrogation,
he or she ceases by the civil law to
be our debtor, and we cannot directly
declare in the intentio that he or she
is bound to convey. To protect our
rights, however, from extinction by
the act of another, the praetor grants
a fictitious action, rescinding or ig-
noring the defendant’s act and sup-
posing the continuance of his or
her original status.
§ 80. The lex Aebutia is supposed to have been passed about
170 s.c. The leges Juliae are supposed to be a lex judiciaria
passed by Julius Caesar about 45 B.c., and another lex judiciaria
passed by Augustus about 25 B.c. After the legis actiones were
abolished as modes of proceeding in civil suits their forms still
survived in the ceremonies of Adoption, the manumission of a slave,
the emancipation of a son, and conveyance by in jure cessio.
It may be questioned whether Gaius has exactly laid his finger
on the deficiency of the system of Statute-process when he alleges
ite excessive formalism (nimia subtilitas) as the cause of its failure.
Its shortcoming was not so much ite formalism (the following
system was equally formalistic) as (1) its want of safeguards against
errors of form and (2) its want of power of expansion.
(1) Though the Formula was perhaps as literally and rigorously
interpreted as the form of Statute-process, yet the period at which
the Formula was fixed in the Formulary system diminished the
danger of the defeat of a rightful claim by an error in the selection
of the appropriate form. The formula of an action was not de-
488 DE ACTIONIBUS. [rv. §§ 30-38.
termined till the close of a debate before the magistrate (in Jure)
in which both parties were assisted by jurists and had disclosed, in
part at least, their pretensions, and brought the true issue to light.
Statute-process was formal at an earlier stage and from the inception
of the proceedings: and the kinds of statute-process were specially
characterized and denominated by their first stages even when these
were extra-jural or outside the court, as im manus injectio and
pignoris capio. In Statute-process an error of form at any of the
stages preceding litis contestatio was fatal to the party by whom it
was committed. In the Formulary system no litigant could commit
& suicidal error—no form was fixed whereby his claim could be
defeated—before the litis contestatio.
(2) A plaintiff had no remedy unless he could show that his case
had been contemplated by the legislator: but the legislator had
been too much occupied with foreign war and domestic dissension
to think of developing the private code. Jurisprudence had been
busy in framing such actions as the system admitted ; but jurispru-
dence had little voice and little scope. If the law was silent, if
there was any hiatus or casus omissus, jurisprudence was not
allowed to fill up the void. The praetor himself had his hands tied
and was a mere piece of machinery. The institution of the For-
mulary process gave an organ to the voice of Jurisprudence, and the
power of issuing edicts and inventing new forms of action consti-
tuted the praetor a second legislator. The enlarged scope given to
the conscience of jurisprudence by the new powers of the praetor
produced an enlargement of the scheme of remedies such as followed
in England from the recognition of the royal conscience as a source
of civil legislation and the erection, beside and in addition to the
common law courts, of à court of Chancery presided over by the
guardian of the conscience of the king. Ihering, § 47.
Conceptae feriae denoted holidays specially appointed by the
magistrate, as opposed to feriae stativae: so concepta verba seems
to denote the formulas accommodated by the magistrate to the
various grounds of litigation, as opposed to the certa verba, § 29,
or more immutable formulas prescribed to the litigants in Statute-
process by the legislator. The term, then, expresses elasticity.
We may observe by anticipation that the formulary system,
after an existence of nearly five hundred years, was brought by
the ingenuity of lawyers into the same discredit and experienced
the same fate as the system it had displaced. First Diocletian,
1v. § 30-38.] DE FICTIONIBUS. 489
A.D. 294, made all judicia extraordinaria, that is, required the
magistrates to hear and determine all causes themselves, instead
of commissioning others to hear and determine them, Cod. 8, 3.
* Governors of provinces shall themselves determine the causes
which they used to refer to inferior (pedaneos) judges, unless com-
pelled by pressure of business or the number of causes to delegate
their function.” [Pedaneus judex is the ordinary judex of the For-
mulary system, as distinguished from the praetor or highest judicial
authority. In the latest period the praetor or magistrate judged in
person and was denominated judex, but under certain circumstances
he could appoint a judge called judex pedaneus as his substitute. |
Afterwards Constans, A.D. 842, abolished the necessity of using con-
secrated terms in any legal act. Juris formulae, aucupatione sylla-
barum insidiantes, cunctorum actibus radicitus amputentur, Cod.
2, 58. ‘ Legal formulas with their syllabic snares and pitfalls, are
hereby abolished in every procedure.’
$31. The proceeding under the edict in Damni infecti was as
follows: If A apprehended damage to his property from the
downfall of a dilapidated house (aedes vitiosae, ruinosae) belonging
to B, he might apply to the praetor and obtain an order that B
should promise, with or without sureties according to circum-
stances, to indemnify A in the event of the accident. If B
refused to promise, the praetor by a first decree put A in pos-
session, that is, gave him detention or custody of B’s house. If
B still refused, the praetor by a second decree gave the property
to A, if B was quiritarian proprietor: if B had not the quiritarian
property, the praetor gave A the bonitarian property, that is, a
usucapion possession which time would convert into quiritarian
proprietorship. This remedy, imposing the necessity of indemni-
fying or surrendering the cause of damage, was an imitation of
noxal actions, which. compelled the father of a son or owner of
a slave or of a beast that had injured a neighbour's property
either to make compensation or to surrender the author of the
damage.
The proceeding damni infecti nomine by statute-process, from its
similarity to the proceeding in aquae pluviae arcendae, may be in-
ferred to have been a form of judicis postulatio.
$ 82. In English law there is a similar reference to an obsolete
institution in the case of debtors to the sovereign. By 33 Hen. 8,
c. 89, and 13 Eliz. c. 4, persons indebted to the Crown are to incur
490 DE ACTIONIBUS. [rv. $$ 30-38.
in certain cases the same liability as if they were bound in a Statute
Staple, a form of solemn contract now disused.
§ 34. Gaius appears to have divided Fictions into two classes,
those which made a reference from the formulary system to the older
system of procedure, and those which made a reference from rights
protected by the praetor to rights recognized by the civil law.
The former class were not an extension of the law, but only pre-
served to a plaintiff the remedies which he otherwise would have
lost by the change of procedure when statute-process was abolished.
For instance, the fiction of Pignoris capio was employed to
preserve unimpaired the rights of the revenue contractor and as
a measure for assessing the damages to which he was entitled
against a defaulter.
The second class of fictions was an extension or reform of the
law, protecting persons whose rights had previously not been
recognized, or mitigating the rigours and liberalizing the narrow-
mindedness of the ancient barbarous legislation: granting to the
bonitarian proprietor by inheritance or purchase the protection
enjoyed by the quiritarian proprietor; giving to the alien the
redress provided for the citizen, and preserving to the creditor
the remedies extinguished by the debtor’s diminution of status.
In their task of ameliorating the law the praetors proceeded as un-
obtrusively as possible, by tacit rather than by open legislation, and
rather by innovations in the adjective code, to use Bentham’s
expression, or code of procedure, than in the substantive code.
The introduction of the formulary system, giving them authority
to ereate new actions, had virtually invested them with much
legislative power. 'The new actions introduced by the praetor were
called actiones utiles. Utiles actiones were either fictitiae or in
factum, 8 $ 219, comm. Let us examine actiones fictitiae and in
factum in respect of the mode of their operation. The logic of
justice as administered in the courts may be regarded as a syllo-
gism, of which the major premiss is the substantive law annexing
a certain remedy to certain conditions (to a certain title) ; the minor
premiss the proposition that between the present plaintiff and defen-
dant these conditions are satisfied ; and the conclusion, the enforce-
ment of the remedy in favour of the plaintiff by the executive. Let
A represent the remedy or sanctioning right, B the conditions or
title, C the plaintiff or his facts. (If C represente the defendant,
A will represent the sanctioning duties or obligations.) The praetor
rv. $$ 30-38.] DE FICTIONIBUS. 491
proceeded in two ways, (1) Without or (2) with the use of
fiction.
(1) Without expressly asserting the major premiss, B is A, or avow-
edly introducing a new principle of substantive law, it is clear that
he introduced it by implication if he made the conclusion, C is A,
follow from the minor premiss, Cis B. He did so in granting an actio
in factum, one of his most potent instruments, that is, an actio whose
intentio in faetum concepta, of the form, Si paret . . . fecisse, proposed
a single issue of fact; for thus he tacitly introduced a new major
premiss, B is A, or converted a rule of equity or public opinion into
@ principle of substantive law, without any fiction or reference to
previous rules. — Utilis actio in factum, D. 11, 7, 7 $ 1, was an
action that really had an affinity or analogy to some actio directa,
but did not in its formula accentuate this affinity by means of any
Fictio, e. g. actio Depositi, $ 47.
(2) When he granted a fictitious action, that is, one whose
intentio in jus concepta, of the form, Si paret . . . . oportere,
admitted issues both of fact and of law, the fiction furnished an
exact measure of the extent to which the old law had been
abandoned. If the old law is represented by the major premiss,
B is A, the praetor might suppress some element, X, of the title
B to which the remedy À was annexed; and make the conclusion,
C is A, follow from the minor premiss, C is B minus X. ,The
fiction would be the false assumption that C (the plaintiff's case)
satisfied the abrogated condition X whenever it was proved to
satisfy the remaining elements of B. By ruling that the fictitious
proposition, C is X, should not be called in question, and that the
defendant should not be allowed to demur to the plaintiff's claim
on the ground that X was unsatisfied, the praetor would virtually
abrogate the old law, B is A, and substitute for it the new law, B
minus X is A. In the cases given by Gaius the condition repre-
sented by X relates to succession, usucapio, citizenship, status. It
might relate to delivery, contract, alienation, or any other dispo-
sition. In the actio Pauliana, protecting creditors against
fraudulent alienations, the fiction was an assumption of non-delivery
(rescissa traditione). Restitutio in integrum of a minor or person
who had acted under constraint of fear might assume the form of a
fictitious action which treated the rescinded act as unperformed
(rescissa alienatione).
A utilis actio, e.g. the formula Rutiliana, § 35, sometimes
492 DE ACTIONIBUS. [rv. $$ 30-38.
depended on a variance in the parts of a formula, the true plaintiff
or defendant first appearing in the condemnatio after another
person had been named in the intentio. 'The formula is thus
shaped when one of the parties to an action is a procurator,
4 §§ 86, 87; but in the utilis actio the relation of principal and
procurator is merely fictitious.
Of the above forms of actio utilis the actio fictitia was probably
the first to be established, and the actio in factum concepta the
most recent.
§ 85. The purchaser of a bankrupt’s estate, unlike the purchaser
at a sectio bonorum, or sale sub hasta of the confiscated goods of a
criminal, though a universal successor, only took, in the language
of English law, the equitable and not the legal estate. To protect
his rights the praetor allowed him to sue by actio fictitia either '
in the character of heres, or successor to the legal estate, or by a
variance of the parts of the formula (convertit condemnationem in
suam personam), in the character of procurator.
The praetor Publius Rutilius may either have been a person who
was praetor in 167 B.c., or a person who was consul in 104 s.c.
The formula which he introduced was used by the cognitor and
procurator, 4 § 86. Before his time, apparently, the lawyers enter-
tained a superstition about a variance between the intentio and
condemnatio.
The actio Serviana here mentioned was apparently not the same
as the actio Serviana whereby a leseor could recover the goods of
a colonus which had been pledged as a security for the payment of
rent.
§ 86. A Quintus Publicius is mentioned by Cicero, Pro Cluentio,
45, as praetor in B.c. 66 or shortly before. The actie Publiciana,
2 $41, was used by a grantee from a grantor who was not pro-
prietor. But the action would also be convenient to an actual
proprietor who wished to be relieved of the necessity of proving his
title. The plaintiff had to prove that he acquired possession in
consequence of some disposition (titulus, causa) such as emptio.
His acquisition had to be accompanied like Usueapio by bona fides,
i. e. à belief that the alienor had a power to aliene; but as the proof
of bona fides is impossible, whereas the proof of mala fides is often
easy, bona fides was presumed; i.e. the burden of the proof of
mala fides was thrown on the defendant. If the plaintiff proved
his intentio the defendant would stil prevail if he could show a
1v.§§39-44.] DE PARTIBUS FORMULARUM. 493
better title as by a similar acquisition a diverso auctore, or & prior
acquisition ab eodem auctore. In these cases Publiciana wore the
air of a duplex judicium. Savigny, Obligationsrecht, § 67. For
an account of the actio Publiciana, when maintained by (1) a
bonitary proprietor, (2) a bona fide possessor, see 2 §§ 40-61, comm.
The form of the actio Publiciana that we have considered pro-
ceeds on the supposition of the accomplishment of a non-accom-
plished usucapio. Some writers, misled by Dig. 44, 35, 7, pr.,
have imagined the existence of another form of Publiciana, which
they call contraria Publiciana or Publiciana rescissoria, proceeding
on the supposition that an accomplished usucapio had not been ac-
complished. But Savigny has shown, § 329, that this is erroneous :
that when usucapion is rescinded in Integral Restitution on account
of Absence, the action whereby the plaintiff recovers his property
may be, according to circumstances, either an ordinary Publiciana
or an ordinary Vindicatio, Inst. 4, 6, 5: that the rescission of
usucapio, in other words, does not give birth, as supposed, to any
new form of action.
§ 38. By a positive rule, of which we are unable to give the ra-
tionale [1 $ 162, comm.], the change of status produced by eoemptio
and adrogatio extinguished the debts of the wife or adrogatus, and
the husband or adrogator acquired by manus and patria potestas
their rights without their liabilities. To meet this the praetor gave
the creditor an actio rescissoria: Ait praetor: qui quaeve, posteaquam
quid cum his actum contractumve sit, capite deminuti deminutaeve
esse dicentur, in eos easve quasi id factum non sit judicium dabo,
Dig. 4, 5,2. If the action was not defended by the husband or
adrogator, the praetor gave the creditor missio in possessionem and
power of sale against all the property of the wife or adrogatus,
8 § 84.
DE PARTIBUS FORMULARUM.
§ 39. Partes autem formularum
hae sunt: demonstratio, intentio,
adiudicatio, condemnatio.
§ 40. Demonstratio | est ea pars
formulae quae —, ut demonjstretur
res de qua agitur: uelut haec pars
formulae QYOD A. AGERIVS N. NEGI-
DIO HOMINEM VENDIDIT ; item haec
QVOD A. AGERIVS (APVD) N. NEGI-
DIVM HOMINEM DEPOSVIT.
$39. The formula is composed of
the Demonstratio, the Intentio, the
Adjudicatio, the Condemnatio.
§ 40. The principal function of
the Demonstratio is to indicate the
subject of dispute, [the cause of
action, the title of the plaintiff's
right, the origin of his claim] as in
the following example: ‘ Whereas
Aulus Agerius sold a slave to
494 DE ACTIONIBUS.
§ 41. Intentio est ea pars formu-
lae qua actor desiderium suum con-
cludit : uelut haec pars formulae s1
PARET N. NEGIDIVM A. AGERIO 8E8-
TERTIVM X MILIA DARE OPORTEBE ;
item haec QVIDQVID PARET N. NEGI-
DIVM A. AGERIO DARE FACERE
(OPORTERE) ; item haec 8I PARET
HOMINEM EX IVRE QVIBITIVM A.
AGERII ESSE.
$ 42. Adiudicatio est ea pars
formulae qua permittitur iudici rem
alicui ex litigatoribus adiudicare:
uelut si inter coheredes familiae
erciscundae agatur, aut inter sociog
communi diuidundo, aut inter uici-
nos finium regundorum. nam illic
ita est QVANTVM ADIVDICARI OPOR-
TET, IVDEX TITIO ADIVDICATO,
$ 43. Condemnatio est ea pars
formulae qua iudici condemnandi
absoluendiue potestas permittitur :
uelut haec pars formulae 1IVDEX N.
NEGIDIVM A. AGERIO SESTERTIVM X.
MILIA CONDEMNA. 8I NON PABET,
ABSOLVE; item haec IVDEX N. NEGI-
DIVM A. AGERIO DVMTAXAT (X
MILIA) CONDEMNA. 8I NON PARET,
ABSOLVITO; item haec IVDEX N.
NEGIDIVM A. AGERIO CONDEMNATO
et reliqua, ut non adiciatur DYM-
TAXAT (X MILIA).
$44. Non tamen istae omnes
partes simul inueniuntur, sed quae-
dam inueniuntur, quaedam non in-
ueniuntur. certe intentio aliquando
sola inuenitur, sicut in praeiudici-
[1v. $$ 39-44.
Numerius Negidius, or, ‘ Whereas
Aulus Agerius deposited a slave in
the hands of Numerius Negidius..’
§ 41. The Intentio expresses the
claim of the plaintiff, thus: ‘If it
be proved that Numerius Negidius
ought to convey ten thousand ses-
terces to Aulus Agerius;’ or thus:
* Whatever it be proved that Nume-
rius Negidius ought to convey or
render to Aulus Agerius;’ or thus;
‘If it be proved that the slave in
question belongs to Aulus Agerius
by the law of the Quirites.’
§ 42. The Adjudicatio empowers
the judex to transfer the proprietor-
ship of a thing to one of the liti-
gants, and occurs in the actions for
partitioning an inheritance between
co-successors, for dividing common
property between co-proprietors,
and for tracing boundaries between
neighbouring landholders. In these
the praetor says: ‘ The portion of
the estate that ought to be trans-
ferred to Titius, do thou, judex, by
thy award transfer to him,’
$ 43. The Condemnatio em-
powers the judex to condemn or
absolve the defendant, thus: * Do
thou, judex, condemn Numerius
Negidius to pay to Aulus Agerius
ten thousand sesterces; if it be
not proved, pronounce his abso-
lution;' or thus: * Do thou, judex,
condemn Numerius Negidius to
pay to Aulus Agerius a sum not
exceeding ten thousand sesterces ;
if it be not proved, pronounce
his absolution;' or thus: ‘Such
a sum do thou, judex, condemn
Numerius Negidius to pay to
Aulus Agerius, et cetera, without
naming the sum or fixing a maxi-
mum of ten thousand sesterces.
$ 44. These parts are not con-
current, but where some are present
others are absent. Sometimes the
Intentio is found alone, as in the
prejudicial formula to decide whe-
1v. $$ 39-44.]
alibus formulis, qualis est qua quae-
ritur, aliquis libertus sit, uel quanta
dos eit, et aliae conplures. demon-
stratio autem et adiudicatio et con-
demnatio numquam solae inueniun-
tur, nihil enim omnino (demon-
strato) sine intentione uel con-
demnatione ualet ; item condemnatio
sine demonstratione uel intentione,
uel adiudica( tio sine demonstratione
uel inten)tione nullus uires habet,
DE PARTIBUS FORMULARUM.
495
ther a man is a freedman, or to
ascertain the amount of a dower,
or to settle other preliminary in-
quiries. But the Demonstratio,
Adjudicatio, and Condemnatio are
never found alone, for the Demon-
stratio is inoperative without an
Intentio and Condemnatio, and the
Condemnatio and Adjudicatio are
inoperative without a Demonstratio
or an Intentio.
(et) ob id numquam solae inueniun-
tur.
$ 89. Besides the four parts mentioned by Gaius the formula
always contained a nomination of a judex, and sometimes an ex-
ceptio, praescriptio, or arbitrium, accessory parts which will be
presently explained.
§ 40. The demonstratio seems not to have occurred in real
actions nor in personal actions in factum, but in personal actions
in jus, whether founded on contract or on tort, excepting perhaps
the condictio certi. It was introduced in order to form a basis for
aestimatio, whenever an intentio incerta left the quantum of the
condemnatio to be determined by the judex. In Publiciana, $ 36,
and Condictio certi, § 55, the causa is introduced, not in Demon-
stratio, but as a part of the Intentio.
If the contract had a technical name (e.g. depositum, venditio)
ihe demonstratio contained the name (deposuit, vendidit); if the
contract was nameless, it was described in the praescriptio,
which was a substitute for the demonstratio, by a circumlocu-
tion, and the action was called actio praescriptis verbis, 8 $$
90,91. That a demonstratio was found in actions ex maleficio
appears from Gaius, below, $ 60, and from Paulus, Collatio, 2, 6.
Sicut formula posita est: Quod Auli Ageri? pugno mala percussa est ;
Illud non cogitur dicere, dextra an sinistra, nec qua: manu percussa
sit. Ita si dieat infamatum se esse, debet adjicere quemadmodum
infamatus sit. Sic enim et formula concepta est: Quod Numerius
Negidius libellum (or sibilum) immisit. Aulo Agerio infamandi causa.
‘As the formula is worded: Whereas Aulus Agerius was struck on the
cheek by the fist; the plaintiff is not compelled to declare whether
he was struck on the right or left cheek, or whether with the right
or left hand. And if he sue for defamation, he must allege the
means, for so the formula is framed: Whereas Numerius Negidius
496 DE ACTIONIBUS. [1v. $$ 39—44.
(hissed or) published a libel against Aulus Agerius with the purpose
of defamation.’
The absence of a demonstratio i in the formula of condictio certi
may be inferred from the example given by Gaius, $ 86, and from
the assertion of Cicero, Pro Roscio Comoedo, 4, that it did not
appear whether Fannius, who sued Roscius by condictio certi,
founded his claim on mutui datio, expensilatio, or stipulatio. He
could hardly have asserted this, if the title on which Fannius sued
had been expressed in a demonstratio. On the other hand, we have
& demonstratio in the condictio incerti, $ 186, $ 137. It is obvious
that if a man sues for an indeterminate sum of money he ought to
give the defendant some further information of the cause of action ;
but if he sues for a determinate sum or a definite thing, the de-
fendant can scarcely be ignorant of the cause of action on which
the plaintiff relies.
$ 42. The adjudicatio was only found in the three ac actions familiae
erciscundae, communi dividundo, and finium regundorum. It was
not a declaration of existing property, but a transfer of property to
one of the litigants from the other. Adjudicatione dominia nan-
ciscimur ... nam si judex uni ex heredibus aut sociis aut vicinis
rem aliquam adjudicaverit, statim illi adquiritur sive mancipi sive
nec mancipi sit, Ulpian, 19, 16. ‘Adjudication is a transfer of
dominion, for the successor, partner, landowner, to whom a thing
is adjudicated by the judex, forthwith acquires property therein,
whether it is mancipable or not mancipable. In quibus tribus
judiciis permittitur judici, rem alicui ex litigatoribus ex aequo et
bono adjudicare, et, si unius pars praegravare videbitur, eum in-
vicem certa pecunia alteri condemnare, Inst. 4, 6, 20. ‘In these
three actions the judge has the power to assign a thing on reason-
able grounds to one of the litigants, and, if he thus obtain more
than his share, to condemn him to make pecuniary compensation.”
§ 43. Taxatio [signified by the word ‘dumtaxat’] was a limita-
tion to the condemnatio, §§ 51,52. Besides the kind noticed by
Gaius, there were several others. If a paterfamilias was sued for
the debt of a person in his power whom he had authorized to trade,
the condemnation was limited to the amount of the peculium
(quatenus in peculio est); if the slave or son had traded without
authority, it was limited to the amount of profit the father or
master had thereby received (quatenus in rem ejus versum est); if
the heir of à wrong-doer or fraudulent debtor was sued, it was
rv. §§ 39-44.] | BENEFICIUM COMPETENTIAE. 497
limited to the amount that he gained from the wrong or fraud by
his succession (dumtaxat in id quod ad eum pervenit), §§ 72, 73.
Again some debtors enjoyed a privilege that is called Beneficium
competentiae: the privilege of not being condemned to pay the
whole amount of their debt but only such an amount as will leave
them the means of subsistence (condemnatio in id quod debitor
facere potest). Cf. Inst. 4, 6, 87, 88. A soldier sued by any
ereditors; a bankrupt who has made cessio bonorum, sued by
his original creditors in respect of after-acquired property; a
person sued on becoming a paterfamilias by a creditor for &
debt incurred when he was a filiusfamilias; an ascendant sued
by a descendant; a husband sued by a wife or a wife by a
husband before or after divorce for a debt incurred during mar-
riage; a father-in-law sued by a son-in-law for a promised dower ;
a donor sued by a donee; a partner sued by a partner; were only
lable to be condemned in such a sum as would leave them the
necessaries of life. The privilege was enforced by Exceptio,
Dig. 44, 1, 22. It was forfeited by dolus and did not apply to
liabilities arising from delict. If & privileged debtor was con-
demned in the whole amount of his fortune he could claim to
have a deduction for his means of subsistence made in the levy
of execution.
The obligation of the privileged debtor, however, was not extin-
guished until his creditor had received full satisfaction, and any
after-acquired property of the debtor was liable to the claims of the
creditor. Accordingly, at the period when Res judicata operated
either ipso jure or per exceptionem to extinguish a right of action,
8 § 180, it was necessary, in order to preserve the creditor's right
of subsequent action for the residue, that the judge, as a condition
of allowing the Beneficium competentiae, should compel the debtor
to enter into a stipulation on which a subsequent suit could be
grounded. At a later period, when Res judicata had lost its power
of necessary Novation, it was no longer requisite to exact this
cautio from the debtor before he was allowed to enjoy the Bene-
fieium eompetentiae. Vangerow, $ 174.
$44. A prejudicium is mentioned, 3 § 123, to try whether a
ereditor had openly declared to the sureties the amount of the debt
and number of sureties; on which facts would depend the several
liabilities of each individual.
When Manus had fallen into desuetude, Dos, the contribution of
' Kk
498 DE ACTIONIBUS. [rv. $$ 39-44.
the wife to the expenses of matrimony, became during the subsist-
ence of the marriage tie the property of the husband, 2 $ 63, but
ceased to be his property at its termination. The law, how-
ever, by a partial EXTINCTION of the dower allowed him to retain
whatever necessary outlay he had made for its conservation: Im-
pensae necessariae dotem ipso jure minuunt, Dig. 28, 2, 61. Cf.
$102, comm. If, now, we assume with Ihering that there was
& period when every action was required to have an intentio certa,
§ 50, we can understand the necessity of a praejudicium to ascertain
quanta dos sit, For when the divorced wife sued for restitution
of her dower, having no means of knowing the amount of her
husband’s outlay upon it or what portion of his outlay was neces-
sary to its conservation, she would certainly have incurred the
penalties of plus petitio, § 53, if she was not allowed to ascertain
by a preliminary issue the amount of the dower after deduction of
the necessary outlay. See § 115, comm.
So when by the lex Falcidia all legacies were proportionally
abated until a fourth remained to the heir, it was necessary, in
order to enable the legatee to avoid plus petitio, to allow him to
ascertain the amount of the inheritance by a preliminary inquiry :
Cum dicitur lex Falcidia locum habere, arbiter dari solet ad in-
eundam quantitatem bonorum, Dig. 35, 3,1, 6. ‘When Falcidia
is alleged to be applicable, an arbiter is appointed to ascertain the
amount of the inheritance.
Could a Formula consist solely of a Demonstratio and a Con-
demnatio? Yes, if Savigny is right in supposing, § 312, that the
Praetor sometimes granted a Formula of the following shape :
Quod Aulus Agerius juravit, Numerium Negidium fundum
Cornelianum ipsi dare oportere, quanti is fundus est, eum con-
demna. ‘ Whereas the plaintiff has sworn that the defendant owes
him such and such a thing, do thou, judex, condemn the defendant
to pay him its value.’
To explain this we must notice a peculiar use of the oath (jus-
jurandum) in Roman litigation.
The Teutonic tribes, including our ancestors, allowed a defendant
to purge himself by his own oath supported by the oath of a certain
number of his neighbours; of which institution we have a vestige
in the Wager of law, which was recently an incident of the action
of Detinue, in which the defendant might clear himself by his own
oath and that of eleven compurgators. With such principles of
CONCEPTIO FORMULARUM.
Iv. $$ 45-52.] 499
Evidence it is not surprising that in the German forests the struggle
between litigants was not, who should escape the burden of proof
but, who should enjoy the privilege of proof. The Roman method
was not so liable to abuse. Either litigant might tender (deferre,
delatio) an oath to his adversary, i.e. offer to be concluded by his
adversary’s oath, on an issue either of fact or of law (obligation,
property, succession, &c). The oath was then equivalent to a judg-
ment in favour of the person by whom it was sworn, Inst. 4, 18, 4.
If a litigant was prepared to take an oath his adversary might re-
lease him from actually swearing (dare, praestare, jusjurandum) ; but
this release (remittere, remissio) was equivalent to an actual oath.
Instead of taking & tendered oath, the adversary might make a
eounter-tender (referre, relatio), i.e. submit the issue to the oath
of the original tenderer. To decline either to swear or to make
a counter-tender was equivalent to a confession of the party who
declined, or to an oath of the party who tendered. From this
necessity imposed on the party to whom it was tendered, the oath
was called jusjurandum necessarium, Dig. 12, 2, 34,6. If now on
a tender or counter-tender by a defendant a plaintiff swore to the
justice of his claim, the assessment of damages (rei aestimatio)
would still remain as a question for the judex, and the praetor
would give him a formula consisting, as above, of a Demonstratio
and a Condemnatio. (But see Lenel, das Edictum Perpetuum,
54.
Sie idarly in case of a Confessio in jure where anything but
pecunia certa was admitted to be due, a litis aestimatio would be
necessary, of which the formula would be: Quod Numerius Ne-
gidius in jure confessus est, fundum illum Aulo Agerio se dare
oportere, Quanti is fundus est, judex, Numerium Negidium Aulo
Agerio condemnato : si non paret absolve. Savigny, $ 308.
CONCEPTIO FORMULARUM.
$45. Sed eas quidem formulas in
quibus de iure quaeritur, in ius
conceptas .uocamus, quales sunt
quibus intendimus NOSTRVM ESSE
ALIQVID EX IVRE QVIRITIVM, aut
NOBIS DARI OPORTERE aut PRO
FVRE DAMNVM (DECIDI OPORTERE;
tn) quibus iuris ciuilis intentio est.
$45. A formula is framed to
embrace an allegation of law when
it raises & question of right; when,
for instance, we declare ourselves
proprietors by the law of the Qui-
rites, or assert that the defendant is
bound to convey to us or to make
composition as a thief; for in these
and the like cases we appeal to a.
principle of civil law.
Kk2
500
$ 46. Ceteras uero in factum
conceptas uocamus, id est in quibus
nulla talis intentio concepta est,
(sed) initio formulae nominato eo
quod factum est, adiciuntur ea
uerba per quae iudici damnandi
absoluendiue potestas datur : qualis
est formula qua utitur patronus
contra libertum qui eum contra
edictum praetoris in ius wocauit ;
nam in ea ita est REOVPERATORES
SVNTO. SI PARET ILLVM PATRONVM
AB ILLO LIBERTO CONTRA EDICTVM
ILLIV8 PRAETORIS IN 1V8 VOCATVM
ESSE, RECVPERATORES ILLVM LI-
BERTVM ILLI PATRONO SESTERTIVM
X MILIA CONDEMNATE. BRI NON
PARET, ABSOLVITE. ceterae quoque
formulae quae sub titulo DE IN
IVS VOCANDO propositae sunt, in
factum conceptae sunt, uelut ad-
uersus eum qui in ius uocatus neque
uenerit neque uindicem dederit ;
item contra eum qui ui exemerit
eum qui in ius uocatur ; et denique
innumerabiles eius modi aliae form-
ulae in albo proponuntur.
$ 47. Sed ex quibusdam causis
praetor et in ius et in factum con-
ceptas formulas proponit, ueluti
depositi et commodati. illa enim
formula quae ita concepta est IYDEX
ESTO. QVOD A. AGERIVS APVD N.
NEGIDIVM MENSAM ARGENTEAM
DEPOSVIT, QVA DE RE AGITVB, QVID-
QVID OB EAM REM N. NEGIDIVM A.
AGEBIO DARE FACERE OPORTET EX
FIDE BONA, EIVS IVDEX N. NEGI-
DIVM A. AGERIO CONDEMNATO, NISI
BESTITVAT. 81 NON PARET, ABSOL-
VITO, in ius concepta est. a£ illa
formula quae ita concepta est IVDEX
ESTO. SI PARET A. AGEBIVM APVD
N. NEGIDIVM MENSAM ARGENTEAM
DEPOSVISSE EAMQVE DOLO MALO N.
NEGIDI A. AGERIO REDDITAM NON
ESSE, QVANTI EA RES ERIT, TANTAM
PECVNIAM IVDEX N. NEGIDIVM A.
AGERIO CONDEMNATO. BI NON PA-
BET, ABSOLVITO, in factum con-
DE ACTIONIBUS.
$ 46. It is framed to contain an
allegation of fact when it contains
no such appeal; but, after proposing
a fact, proceeds at once to the Con-
demnatio and Absolutio; asin an
action by a patron against a freed-
man for a summons in contraven-
tion of the edict. The formula
then runs thus: ‘ Let M N be recu-
perators. If it be proved that such
and such a patron was summoned
to appear by such and such a freed-
man against the edict of such and
such a praetor, do you, recuperators,
condemn the said freedman to pay
io the said patron ten thousand
sesterces; if it be not proved, pro-
nounce his acquittal.’ The other
formulas relating to summonses
raise questions of fact, as the for-
mula in an action against a defend-
ant who on service of summons
neither appears nor finds a vindex,
or against a person who makes a
violent rescue of a person summoned
to appear, and many other formulas
in the praetor's album.
$47. Some actions may be in-
stituted by formulas either of law
or of fact, as for instance the actions
of Deposit and Loan for use. The
following formula: ‘Let C D be
judex. Whereas Aulus Agerius
deposited a silver table in the
hands of Numertus Negidius, which
is the ground of action, whatso-
ever it be proved that Numerius
Negidius is on that account bound
by good faith to convey or render
to Aulus Agerius, do thou, judex,
condemn Numerius Negidius to pay
its value,unless he make restitution;
if it be not proved, pronounce his
acquittal:’ is a formula of law. A
formula thus framed : * Let C D be
judex. If it be proved that Aulus
Agerius deposited a silver table in
the hands of Numerius Negidius,
and that by the fraud of Numerius
Negidius it has not been restored to
1v. $$ 45-52. |
cepta est. similes etiam commodati
formulae sunt,
$ 48. Omnium autem formu-
larum quae condemnationem ha-
bent, ad pecuniariam aestimationem
condemnatio concepta est. itaque
et si corpus aliquod petamus, ueluti
fandum hominem uestem (aurum)
argentum, iudex non ipsam rem
condemnat eum cum quo actum est,
sicut olim fieri solebat, (sed) aesti-
mata re pecuniam eum condemnat.
$ 49. Condemnatio autem uel
certae pecuniae in formula pro-
ponitur uel incertae.
$ 50. Certae pecuniae uelut in
ea formula qua certam pecuniam
petimus; nam illic ima parte for-
mulae ita est IVDEX N. NEGIDIVM A.
AGERIO SESTERTIVM X MILIA CON-
DEMNA. SI NON PABET, ABSOLVE.
$ 51. Incertae uero condemnatio
pecuniae duplicem significationem
habet. est enim una cwm aliqua
praefinitione, quae uulgo dicitur
cum taxatione, uelut si incertum
aliquid petamus; nam illic ima
parte formulae ita est IVDEX N.
NEGIDIVM A. AGERIO DVMTAXAT
BESTERTIVM X MILIA CONDEMNA. SI
NON PARET, ABSOLVE. uel incerta
est et infinita, uelut si rem aliquam
a possidente nostram esse petamus,
id est si in rem agamus uel ad ex-
hibendum; nam illic ita est QVANTI
E4 RES ERIT, TANTAM PECVNIAM,
IVDEX, N. NEGIDIVM 4. AGERIO CON-
DEMNA. BI NON PARET, ABSOLVITO.
quid ergo est? iudex si condemnet,
certam pecuniam condemnare debet,
etsi certa pecunia in condemnatione
posita non sit.
$ 52. Debet autem iudex atten-
dere, ué cum certae pecuniae con-
CONCEPTIO FORMULARUM.
501
Aulus Agerius, do thou, judex, con-
demn Numerius Negidius to pay
Aulus Agerius whatever shall be
the value of the table; if it be not
proved, pronounce his acquittal :’
is a formula of fact. And there is
& similar alternative in the case of
Loan for use.
$ 48. The condemnatio is always
to pay & pecuniary value. Even
when we claim a corporeal thing, an
estate in land, a slave, a garment,
an article of gold or silver, the
judex condemns the defendant to
deliver not the thing itself, as in
the elder system, but its value in
money.
$ 49. The formula either names
8 certain sum in the Condemnatio
or an uncertain sum.
$ 50. In & condictio when it
names a certain sum, it concludes as
follows: ‘ Do thou, judex, condemn
Numerius Negidius to pay Aulus
Agerius ten thousand sesterces;
if 1t be not proved, absolve him.'
$ 51. An uncertain sum is either
named with a limitation or maxi-
mum, for instance, thus: ‘Do thou,
judex, condemn Numerius Negidius
to pay Aulus Agerius not more than
ten thousand sesterces ; if it be not
proved, absolve him ;’ or it is named
without a limitation, as when we
demand our property from the pos-
sessor in & real action, or demand
the production of a person or thing
in a personal action, where the con-
clusion runs as follows: ‘Do thou,
judex, condemn Numerius Negidius
to pay Aulus Agerius whatever shall
be the value ; if it be not proved,
absolve him.’ But whatever the
claim, the judex must condemn the
defendant to pay a definite sum, even
though no definite sum is named in
the condemnatio.
$ 52. When a certain sum is
Jaid in the condemnatio, he must
502
demnatio posita sit, neque maioris
neque minoris summa posita con-
demnet, alioquin litem suam facit.
item si taxatio posita sit, ne pluris
condemnet quam taxatwm sit, alias
enim similiter litem suam facif.
DE ACTIONIBUS.
[1v. $$ 45-52.
be careful not to condemn the
defendant in a greater or lesser
sum, else he makes himself liable
to damages: and if there is a limi-
tation he must be careful not to
exceed the maximum, else he is
minoris autem damnare ei permis-
sum est. at si etiam |—| qui
formulam accipit, intendere debet,
nec ampéi?us| certa condemna-
tione constringi—| | |
usque uelit.
similarly liable; but he may con-
demn him in less than the maximum.
§ 45. In an action with a formula in factum concepta, the In-
tentio, Si paret fecisse, ‘If it appear that the defendant has done
this or that ’—‘ If the defendant's act place him in a certain class,’
corresponds to the minor premiss of a syllogism of which the con-
clusion is: * Then this defendant is under such and such an obliga-
tion to this plaintiff,’ or ‘This defendant is condemnable to perform
such and such a service to this plaintiff.’ The major premiss will
be: ‘All persons who have done such and such an act,’ or, ‘who
belong to such and such a class, are under such and such an
obligation,’ or ‘are compellable to render such and such a service
to such and such a plaintiff.’ This major premiss is withdrawn from
discussion, is not permitted to be disputed; and the issue in such
an action can only relate to the minor premiss; in other words, is
always an issue of fact.
In an actio with a formula in jus concepta, the intentio, Si paret
oportere, ‘If it appear that the defendant is under such and such
an obligation,’ corresponds to the conclusion of a syllogism of which
the minor premiss is; ‘The defendant belongs to such and such a
class: and the major: ‘All persons belonging to such and such
a class are under such and such an obligation? The major premiss
may be an alleged rule either of law or of equity, a proposition
either of civil law or of praetorian law ; and in neither case is it with-
drawn from discussion. The issue, that is to say, in an action with
a formula in jus concepta may either relate to the minor or to the
major premiss: may be either an issue of fact or an issue of law.
The following passage of Cicero speaks of actions whose formula
was in jus concepta with the additional terms, ex fide bona or the like;
and which therefore involved an issue of equity. Privata enim
judicia maximarum quidem rerum in juris consultorum mihi
videntur esse prudentia. . . . In omnibus igitur iis judiciis in
Iv. §§ 45—52.] CONCEPTIO FORMULARUM. 503
quibus EX FIDE BONA est additum ; ubi vero etiam UT INTER BONOS
BENE AGIER; in primisque in arbitrio rei uxoriae, in quo est, QUOD.
AEQUIUS MELIUS, parati esse debent. Ith enim dolum malum,
illi fidem bonam, illi aequum bonum, illi quid socium socio, quid
eum qui aliena negotia curasset ei cujus ea negotia fuissent; quid
eum qui mandasse eumve cui mandatum esset alterum alteri
praestare oporteret, quid virum uxori, quid uxorem viro, tradiderunt,
Topica, 17. ‘Private suits of the highest importance turn on the
doctrines of the jurist. . . . In all the actions, therefore, where the
judge is instructed to look to the requirements of good faith, to the
practice of honest men, or, as in the suit of a wife against her
husband, to what is good and equal, the jurist should be ready to
speak. For he is the authority on what constitutes fraud or good
faith, what is good and equal, what are the mutual duties of
partners, of principal and agent, whether authorized or unauthorized,
of husband and wife.’ $$ 18-20, comm.
Many questions of law were undoubtedly decided at the initial
stage of an action, in jure, at the appearance before the tribunal or
curule chair of the praetor. At this appearance the parties were
attended by counsel (haerere in jure atque praetorum tribunalibus
[advocatos] De Oratore, 1, 88); and here, though the praetor
would not settle a dispute about facts, many demurrers or simple
issues of law or equity might be decided, and the controversy might
be terminated without ever reaching the stage of reference to a
judex. The praetor, however, had no leisure to determine compli-
eated issues of law or equity, and these were accordingly referred
to a judex or arbiter by a formula in jus concepta.
§ 46. According to the Institutes, a man might not summon his
patron or parent to appear in an action without the permission of
the praetor, under a penalty of fifty solidi, Inst. 4, 16, 3. A solidus
or aureus was a hundred sesterces, so that we must either, with
Savigny, for ten thousand read five thousand sesterces in the text
of Gaius, or suppose that Justinian reduced the penalty to half its
original amount. |
In the formulary system an appearance of the defendant before
the praetor (in jure) was indispensable às the first stage of an action.
In English law, after service of summons or proof that all proper
means for the service of summons have been used in vain, the court
will grant leave to the plaintiff to enter an appearance for the
defendant. But in Roman law an original appearance of the de-
504 DE ACTIONIBUS. [rv. 8$ 45-52.
fendant at the commencement of the action was indispensable.
On service of a summons (in jus vocatio) he was bound either to
obey at once and accompany the plaintiff into court, or to send a
responsible representative (vindex, $ 46) in his stead, or to find
security, called cautio judicio sisti (to be thus interpreted : cautio
sisti in jure ad judicium ordinandum), for his appearance in jure on
a future day. If he took none of these steps he was liable to an
actio in factum, and he might be apprehended and taken by force
(duci in jus, Dig. 2, 8, 5); and any person who made a violent
rescue was liable to be condemned by actio in factum to pay the
amount of the plaintiff's claim, quanti ea res est ab actore aesti-
mata, Dig. 2, 7, 51. At the first appearance in court, after the plain-
tiffs indication of the action he meant to bring (editio actionis),
the defendant was required to give security (vadimonium, or cautio
judicio sisti) for his second appearance in court to receive a judex.
At the second appearance, after the nomination (addictio) of the
judex and the joinder in issue or delivery of the formula (litis con-
testatio, judicium ordinatum, judicium acceptum), there was (at all
events in the legis actiones) an adjournment to the next day but
one (comperendinatio), and on this day the trial before the judex
(judicium) proceeded. In the formulary system, then, there were
two appearances in jure, one in obedience to the in jus vocatio, and
a second for the assignment of a judex. In the Libellary system
which prevailed in the time of Justinian the former of these ap-
pearances was suppressed, and instead thereof the plaintiff by a
libellus conventionis sued out from the court & commonitio or
summons to the defendant to appear before the court. On the
service of this by a public officer the defendant was required to
give cautio judicio sisti, security for his appearance for the arrange-
ment of a judicium, and in default thereof was arrested, § 184 comm.
$47. The formula says Ejus [aestimationem] condemnato, not
Id condemnato, because the Condemnatio did not impose specific
performance but only pecuniary compensation. Bethmann-Hollweg
§ 87. The lawyers manual of practice contained alternative
formulae for the same ground of aetion. Sed tamen non parcam
operae, et ut vos in vestris formulis, sic ego in epistolis, de eadem re
alio modo, Cicero ad Familiares, 18, 27. * However, I will spare no
trouble, and as you lawyers do in your books of formulae, I will pre-
gent you in my correspondence with the same matter in another form.’
Quae cum Zeno didicisset a nostris, ut in actiontbus praescribi so-
vi. $$ 45-52.] FORMULA ARBITRARIA. 505
let, de eadem re dixit alio modo, De Finibus, 5,19. * Zeno learnt this
from the teachers of our school, and then, as the headings of the
formulae say, handled the same subject in a different form.’
One great advantage of the actiones in factum was that they
were available to filii familiarum. In factum actiones etiam fili
familiarum possunt exercere, Dig. 44, 7, 18. It may have been for
the purpose of enabling filii familiarum to sue that formulae in
factum were given in some actions as well as formulae in jus. Cf.
] $ 55, comm.
We shall see hereafter that actio in factum differed from actio in
jus in respect of (1) Plus petitio and in respect of (2) Novatio.
(1) An actio with a formula in factum concepta, having an in-
tentio or formula certa, would be capable of plus petitio: while an
aetio with a formula in jus concepta, though based substantially on
the same grounds, having an intentio or formula incerta, would be
incapable of plus petitio, $ 60.
(2) Novatio was only produced by Litis contestatio when the
formula was in jus concepta, $ 107.
The words Nisi restituat, exhibeat, are the clause which consti-
tutes a formula arbitraria. In the formulary system the condem-
nation was always pecuniary; the defendant was always condemned
by the judgment to pay the plaintiff à sum of money. By means,
however, of the alternative clause in a formula arbitraria the
plaintiff could recover a specific thing or enforce a specific per-
formance. Empowered by this clause the judex made a preliminary
order (jussus, arbitrium) for the restitution or performance; and
if it was obeyed the defendant was absolved, if it was disobeyed the
pecuniary condemnation was the penalty of disobedience. Inst. 4,
6, 31. |
Actiones arbitrariae included Real actions, framed as formulae
petitoriae, $ 92 (e.g. vindieatio, publiciana, hereditatis petitio,
eonfessoria, hypothecaria), and such bona fide actions (e.g. depositi,
eommodati, locati, tutelae, rei uxoriae) and praetorian actions
(e.g. doli, metus, interdictum de vi, $ 168) as were brought to
obtain Restitution. The formula arbitraria, accordingly, could not
be used in an actio empti, for though this was a bona fide action,
yet the specific performance (traditio) sought to be enforced was not
of the nature of a Restitution: nor could the formula arbitraria be
employed in actions stricti juris, i.e. either condictions or actions
founded on delict.
506 DE ACTIONIBUS. [1v. 8$ 45-52:
Of the formula arbitraria in & real action with a formula peti-
toria we have an instance in Cieero ; Lucius Octavius judex esto :
Si paret. fundum capenatem, quo de agitur, ex jure Quiritium
[Auli Agerii] esse, neque is fundus [Aulo Agerio] restituetur, In
Verrem, 2, 2, 12. In an action for the production as a prelim-
inary to the restitution of a person or thing (ad exhibendum) the
clause would be of the form nisi exhibeat, and generally some
special modification of nisi actori satisfaciat. In noxal actions
§ 75, there was probably no clause nisi noxae dedat, but the
judgment was of the form Publium Maevium Lucio Titio decem
aureis condemno aut noxam dedere, Inst. 4, 17; for the defendant
was intended to exercise the election of paying damages or surren-
‘dering the author of the mischief. But in other actions no such
discretion was intended to be given, and the damages were meant
as a penal sum to enforce obedience to the judge's order. This
object was enforced by Jusjurandum in litem, an institution that
will be presently explained.
As soon as the rule was established : omnia judicia esse absolutoria,
§ 114, that in every action a defendant might avoid condemnation
by satisfying the plaintiff's claim even after the commencement of
the suit, it might seem that the formula arbitraria was rendered
unnecessary. But this was not so; for whereas in other actions
the defendant might hope for à judgment in his favour, in actio
arbitraria as soon as the arbitratus or order was pronounced he
would know that he would inevitably be condemned unless he made
the restitutio or exhibitio required. The formula arbitraria would,
however, become in most cases unnecessary in the last period of
Roman law when, as we shall presently see, the defendant was not
invited under pain of heavy damages, but compelled by the publie
force (manu militari), to make specific restitution.
The intentio of an action with a formula in faetum concepta was
sometimes one-limbed : e.g. Si paret . . . . vocatum esse, § 46, and
sometimes two-limbed : e.g. Si paret (1) Aulum Agerium rem de-
posuisse (2) eamque dolo malo Numerii Negidii Aulo Agerio reddi-
tam non esse, § 47. A one-limbed intentio would be used when the
defence was a simple traverse or contradiction of the fact alleged by
the plaintiff: a two-limbed formula would be used when the de-
fendant confessed the fact alleged by the plaintiff but alleged a
second fact (payment, release, novation, &.) whereby the obligation
created by the former was extinguished or counteracted.
rv. $$ 45-52.] FORMULA ABBITRARIA. 507
Accordingly it would be a mistake to suppose that the clause:
eamque dolo malo Numerii Negidii Aulo Agerio redditam non esse
was equivalent to the arbitratus or clause Ni restituat which in the
preceding formula limits the condemnatio. The former clause raises
the question whether restitution was made before the action was
brought (ante judicium acceptum): the clause Ni restituat gives
the defendant power to make restitution at any time after the
action was brought but before the condemnatio: and there is no
reason why the clause Ni restituat should not be added to the
double-limbed as well as to the single-limbed formula in factum
concepta or the formula in jus concepta. The position of the
elause Nisi restituat varied: (1) in real and praetorian personal
actions with an intentio in factum concepta, the words Neque ea
res arbitrio judicis restituetur, D. 4, 2, 14, 11, intervened between
the intentio and condemnatio, (2) in a bonae fidei actio Nisi restituat
followed the first clause of the condemnatio, $ 47. The Edict
used the clause Nisi restituat or its equivalent in other actions
which are not Arbitrariae: e.g. Nautae, caupones, stabularii, quod
cujusque salvum fore receperint, id Nisi restituent, in eos judicium
dabo, D. 4, 9, 1; and against Publicani, D. 839, 4, 1, pr. Here the
non-restitution would form a part of the intentio, and would refer
to the time before Litis contestatio. In actio Constitutae pecuniae
the intentio was composed of three allegations: a pre-existing debt,
@ promise to pay, and its non-fulfilment, $ 171, comm.
$ 48. From the expression of Gaius, non ipsam rem condemnat
sicut olim fieri solebat, we might suppose that statute-process (legis
actio) differed from Formulary procedure in that, while in the latter
the condemnation was always pecuniary, in the former, as in the
last stage of Roman law, the plaintiff recovered the specific object
of litigation and not ite pecuniary value. But it would be strange if
Roman jurisprudence had thus retrograded, and its second stage had
been less perfect than its first: and the meaning of Gaius doubt-
less is, that, whereas in the Formulary system a single action decided
the claims of the plaintiff and assessed their money value, in the primi-
tive system two actions were necessary ; a principal action to decide
on the justice of the plaintiff’s claim, and a supplementary action
(arbitrium liti aestimandae) to transform it into money. Probus
apparently gives the terms in which the plaintiff who had succeeded
in his principal suit demanded an arbiter to assess the damages: Ar-
bitrum liti aestimandae postulo te, Praetor, uti des. This arbitrrum
508 DE ACTIONIBUS. [1v. $$ 45-52.
was not reckoned among the forms of Statute-process because it
was merely aecessory to the principal action. Bethmann-Hollweg,
§ 87.
Two incidents of litis aestimatio in the formulary procedure
deserve notice: (1) Jusjurandum in litem, and (2) the determination
of the Moment to be considered by the judex in appraising the
value of the plaintiff's interest.
(1) Jusjurandum in litem was not like jusjurandum necessarium
a substitute for a judgment, but only one of the means of proof
whereon in certain actions a judgment might be founded. These
actions were (4) principally actiones arbitrariae. To induce the
defendant to avoid condemnation by obedience to the judge’s arbi-
tratus, if the defendant contumaciously refused obedience, or by
dolus or culpa lata bad rendered himself unable to yield obedience
to the order of the judex, the value of the plaintiff’s interest in the
subject of litigation (litis aestimatio) was not ascertained, as in other
cases, by the judex with or without the aid of experts, but by the
oath of the plaintiff. Although he was required to name the true
value (quanti actoris intersit) not a mere fancy value or so-called
value of affection, yet his conscientious estimate would naturally be
higher than that of an impartial judge or disinterested valuer: and
the largeness of the alternative condemnation would incline the
defendant to make a specific restitution.
(P) Even in actiones stricti juris, if litis aestimatio, owing to the
culpa of the defendant, is otherwise impossible to the judex ; if, for
instance, in the actio legis Aquiliae the subject has ceased to exist,
then the judex may employ the oath of the plaintiff as a subsidiary
evidence of the plaintiff's particular interest in the subject and of
its market value. Vangerow, § 171.
(2) The Date of valuation, or time at which the value of the
specifie thing due from the defendant was estimated, depended on
the nature of the action. As a general rule the date of valuation in
stricti juris actions was the date of Litis contestatio, in Bona fide
and Real actions the date of Condemnatio, Dig. 13, 6, 3,2. But
if a date for performance had been fixed in a contract that date was
the date of valuation, Dig. 18, 8,4. Again if the defendant had
been guilty of Mora, 2 $6 260—289 comm., the plaintiff had his
election between any of these dates and the date of Mora, Dig. 19,
1, 8, 8, Dig. 17, 1, 87. The foregoing only relates to Real actions
and Personal actions grounded on Dispositions (contracts and quasi-
1v. $$ 45-52.] IUSIURANDUM IN LITEM. 509
contracts); in personal actions grounded on Delict, the date of
valuation was the date of delict, the date, in other words, of the
inception of obligation.
'These different dates for valuation were expressed in the formula
by a different wording of the Condemnatio. In Real actions, $ 51,
and in Bona fide actions, $ 47, where the date was the date of
passing judgment or condemnation, the formula contained the
words: quanti ea res eri; in delicts where the date of valuation
was the date of delict, it contained the words: quanti ea res fuit,
Dig. 9, 2, 2. No traces exist of the formula employed in Con-
dictions whose time of estimation was the time of Litis contestatio;
but there can be little doubt that it contained the words: quanti ea
res est, Savigny, § 275.
It has already been mentioned, 3 § 212, that the value assessed
might be not simply the market value of the thing but its value to
the plaintiff, including mediate as well as immediate value.
In the legislation of Justinian the rules respecting litis aestimatio
were of less importance, because the condemnatio was in many cases
no longer pecuniary but commanded the conveyance of property
(dare), delivery of possession (tradere), restitution (restituere), or
production (exhibere), of the specific thing itself that was the
original subject of litigation. The defendant was no longer invited,
as in the actio arbitraria of the formulary system, but compelled
by the armed force of the state, to make specific delivery or re-
stitution, Dig. 6, 1, 68. ‘If a defendant allege inability to obey
an order of restitution, if the thing exists, the court uses the mili.
tary power to put the plaintiff in possession, and only condemns
the defendant for the mesne profits and deteriorations. If the
defendant has maliciously disabled himself from restitution, he is
eondemned in the amount, subject to no taxation, at which the
plaintiff on oath assesses his loss; if the inability is not maliciously
produced, the judge assesses the damages. "This applies to all in-
terdicts and actions, real and personal, where the court orders
restitution. Only in certain obligations of performance or non-
performance the condemnation was still pecuniary: Quia non facit
quod promisit in pecuniam numeratam condemnatur, sicut evenit
in omnibus faciendi obligationibus, Dig. 42, 1, 18.
§ 49. In condictio Certi, as we have seen, § 5, both the Intentio
and the Condemnatio are certae: in condictio Triticaria, as in Real
actions, the Intentio, naming certa res, is certa; but the Condem-
510 DE ACTIONIBUS. [rv. $$ 45-52.
natio, containing the words, Quanti ea res est, is incerta. A loan
(numeratio, mutuum) of money (pecunia certa credita) always gave
rise to a condictio certi and could not be recovered by any other
form of suit: whereas a loan of any other quantitas (corn, wine,
oil, &c.) founded a condictio triticaria. The difference of the
formulae in these actions explains the following rule of substantive
law, which otherwise seems capricious: A valid informal con-
vention (nudum pactum) for interest could be annexed to a loan
of corn, wine, or oil, Cod. 4, 82, 28, but not to a loan of money,
Dig. 19, 5, 24.
The reason was this: the loan of any other quantitas than money,
having an incerta condemnatio, allowed the judge of a suit brought
for recovery of the principal to include interest in the sum which
he condemned the defendant to pay: whereas the money loan
having a certa condemnatio, coinciding with the intentio in the
sum it defined, the judge of a suit brought for the principal, under
pain of litem suam facere, $ 52, could only condemn the defendant
to pay the principal.
If, then, interest on a loan of money was intended to be paid, it
was necessary to secure it by a formal contraet (stipulatio) which
would found a condictio incerti distinct from the condictio certi
which might be brought for the principal: whereas interest
for any other quantitas could be secured by a pactum nudum
annexed to the numeration, ponderation, or mensuration of the
principal, Dig. 12, 1, 7, and recovered in the action brought for the
principal.
As the strmgency of the rule respecting money loans depended on
the peeuliarity of the formula, it should not have been retained by
Justinian after the abolition of the Formulary procedure. Savigny,
System, $ 268.
The wording of the formula in Condictio certi was doubtless the
reason why in the Formulary period the legatee could not recover
interest on his legacy, 2 § 280.
§ 52. A judex might make a cause (liability, condemnation) his
own by corruption or carelessness, Inst. 4, 5, 1. If he gave a
wrong judgment from dolus, he was liable to be condemned in the
whole amount under litigation, Dig. 5, 1, 15,1. If from culpa, he
was liable to be condemned in such damages as the‘ judge in his
discretion should assess, Dig. 50, 18, 6.
rv. §§ 53-60. |
PLUS PETITIO.
§11
PLUS PETITIO.
§ 53. |Si quis intentione plus
conplexus fuerit, causa cadit, | id
est rem perdit, nec a praetore in
integrum restituitur exceptis | qui-
busdam casibus in qwibus———
praetor non patitur | |
§ 53 a. Plus autem quattuor |
modis petitur: re, tempore, loco,
causa, re, ueluti si quis pro X |
milibus quae ei debentur, XX milia
petierit, aut si is cuius | ex parte res
est, totam eam aut maiore ex parte
suam | esse intenderit.
$ 53 b. Tempore plus petitur,
veluti si quis | ante diem petierit.
$ 53 c. Loco plus petitur, ueluti
si quod. certo loco | dari promissum
est, id alo loco sine commemoratio|ne
eius loci petatur, uelut si quis
ita stipulatus fuerit EPHESI | DARE
SPONDES? deinde Romae pure tn-
tendat DARI SIBIOPORTERE.| |
dare mihi oportere-————|—_—_
(2 uersus in C legi nequeunt)
—— petere id est non adiecto loco.
$ 53 d. Causa plus petitur, uelut
81 quis in intentione tollat elec-
tionem debitoris quam is habet
obligationis iure: uelut si quis ita
stipulatus sit SESTERTIVM X MILIA
AVT HOMINEM 8TICHVM DARE
SPONDES!, deinde alterutrum ex
bis petat ; nam quamuis petat quod
minus est, plus tamen petere uide-
tur, quia potest aduersarius inter-
dum facilius id praestare quod non
petitur. similiter si quis genus
stipulatus sit, deinde speciem petat :
ueluti si quis purpuram stipulatus
sit generaliter, deinde Tyriam
specialiter petat; quin etiam licet
uilissimam petat, idem iuris est
propter eam rationem quam proxime
diximus. idem iuris est, si quis
generaliter hominem stipulatus sit,
$ 53. If the Intentio claim more
than the plaintiff is entitled to, he
loses the whole, and 1s not relieved
by the praetor except in a few cases
where minors and others are not
permitted to suffer the consequences
of error (cf. Inst. 4, 6, 33).
$53 a. À plaintiff claims too
much in four ways, (1) in amount,
(2) time, (3) place, (4) specifica-
tion: in amount, if instead of ten
thousand sesterces, which are due
to him, he claims twenty thousand,
or if being co-proprietor he claims
as sole proprietor, or more than his
share :
$ 53 b. in time, if he demands to
be paid at an earlier time than he
stipulated :
$ 53 c. in place, if he demands
payment at a forum without con-
fessing that it is not the place
at which he contracted to be paid :
if, for instance, having stipulated—
‘Do you promise to pay at Ephe-
sus?’ he subsequently sues at
Rome for payment without refer-
ring in his formula to Ephesus.
$ 53 d. He claims too much by
specification if he deprives the debt-
or of an election to which he was
entitled by the contract; for in-
stance, if he stipulated to receive
alternatively either ten thousand
sesterces or the slave Stichus, and
makes an unconditional claim for
one or the other. For though the
one that he claims be of lesser
value, the other may be more con-
venient for the debtor to convey.
So if he stipulated for a genus and
demands a species, stipulated, for
instance, for purple and demands
Tyrian purple, even though he de-
mand the cheapest species, he
claims more than his due, for the
same reason. So he does if he
stipulated generally for a slave and
512
deinde nominatim aliquem petat,
uelut Stichum, quamuis uilissimum.
itaque sicut ipsa stipulatio con-
cepta est, ita et intentio formulae
concipi debet.
$ 54. Illud satis apparet in in-
certis formulis plus peti non posse,
quia, cum certa quantitas non peta-
tur, sed QVIDQVID aduersarium DARE
FACERE OPORTET intendatwr, nemo
potest plus intendere. idem iuris
est et si in rem incertae partis actio
data sit: uelut talis QVANTAM
PARTEM PARET IN EO FVNDO QVO
DE AGITVR actoris ESSE; quod
genus actionis in paucissimis causis
dari solet.
$ 55. Item palam est, si quis
aliud pro alio intenderit, nihil eum
periclitari eumque ex integro agere
posse, quia nihil ante uidetur egisse:
ueluti si is qui hominem Stichum
petere deberet, Erotem petierit; aut
si quis EX TESTAMENTO DARI sili
OPORTERE intenderit, cui ex stipu-
latu debebatur ; aut si cognitor aut
procurator intenderit sibi DARI
OPORTERE.
$ 56. Sed plus quidem inten-
dere, sicut supra diximus, pericu-
losum est; minus autem intendere
licet ; sed de reliquo intra eiusdem
praeturam agere non permittitur.
nam qui ita agit, per exceptionem
excluditur, quae exceptio appellatur
litis diuiduae.
$57. Atsi in condemnatione plus
positum sit quam oportet, actoris
quidem periculum nullum est, sed
(reus cum) iniquam formulam
acceperit, in integrum restituitur,
ut minuatur condemnatio. si uero
minus positum fuerit quam oportet,
hoc solum consequitur (actor) quod
posuit; nam tota quidem res in
iudicium deducitur, constringitur
autem condemnationis fine, quam
iudex egredi non potest. nec ex ea
parte praetor in integrum restituit ;
DE ACTIONIBUS.
[1v. $$ 53-60.
claims a certain slave, Stichus, for
instance, however worthless. The
Intentio, then, must exactly pursue
the terms of the stipulation.
$ 54. It is clear that an Intentio
naming an uncertain sum cannot be
excessive, for it claims no certain
quantity, but only whatever the
defendant ought to convey or per-
form. The same is true of real
actions to recover uncertain shares,
as that whereby a heres claims
whatever portion of the inheritance
he may be entitled to, which kind
of action is seldom granted. [Dig. 6,
1, 76, 1.]
$ 55. It is also clear that the
plaintiff who claims the wrong thing
in his Intentio, runs no risk and
can bring another action because
his right has not been tried, if he is
entitled, for instance, to Stichus and
claims Eros, or if he is entitled by
stipulation and alleges in the Inten-
tio that he is entitled under & will,
or if & cognitor or procurator claim
in his own right instead of in the
right of his principal.
§ 56. To claim too much, as I
have said, is dangerous ; à man who
claims less than his right does not
forfeit his right, but cannot sue for
the remainder in the same praetor-
ship, for he is repelled by the ex-
ception against Division of actions.
§ 57. If too much is claimed in
the Condemnatio the plaintiff is not
imperilled, but has to submit to
amendment of the formula by in
integrum restitutio. If less is
laid in the Condemnatio than he
is entitled to, he only obtains that
amount, for his whole right has
been brought before the judex and
is reduced to the amount laid in the
Condemnatio, a limit which the
judex cannot exceed; and in this
case the praetor gives no relief, for
Iv. $$ 53-60.] COMITY OF NATIONS, FORUM, LEX.
facilius enim reis praetor succurrit
quam actoribus. loquimur autem
exceptis minoribus XXV annorum;
nam huius aetatis hominibus in
omnibus rebus lapsis praetor suc-
currit.
$ 58. Si in demonstratione plus
aut minus positum sit, nihil in iudi-
cium deducitur, et ideo res in
integro manet; et hoc est quod
dicitur falsa demonstratione rem
non perimi
§ 59. Sed sunt qui putant minus
recte conprehendi, ut qui forte
Stichum et Erotem emerit, recte
uideatur ita demonstrare QvOD EGO
DE TE HOMINEM EROTEM EMI, et 81
uelit, de Sticho alia formula agat,
quia uerum est eum qui duos
emerit, singulos quoque emisse; id-
que ita maxime Labeoni uisum est.
sed si is qui unum emerit, de duo-
bus egerit, falsum demonstrat.
idem et in aliis actionibus est,
ueluti commodati et depositi.
$ 60. Sed nos apud quosdam
seriptum inuenimus, in actione de-
positi e£ denique in ceteris omni-
bus ex quibus damnatus unusquis-
que ignominia notatur, eum qui
plus quam oporteret demonstra-
uerit, litem perdere: ueluti si quis
una re deposita duas pluresue (se
de)posuisse demonstrauerit ; aut si
is cui pugno mala percussa est, in
&ctione iniuriarum etiam aliam
partem corporis percussam sibi de-
monstrauerit. quod an debeamus
credere uerius esse, diligentius re-
quiremus. certe cum duae sint de-
positi formulae, alia in ius concepta,
alia in factum, sicut supra quoque
notauimus, et in ea quidem formula
quae in ius concepta est, initio res
de qua agitur demonstratorio modo
designetur, deinde inferatur iuris
contentio his uerbis QVIDQVID OB
BAM REM ILLVM ILLI DARE FACEBE
513
he is more ready to relieve the de-
fendant than the plaintiff, excepting
always minors, whom he invariably
relieves.
§ 58. If more or less is laid
in the Demonstratio, the plaintiff's
right is not transformed into action
and therefore remains intact, and
this is the meaning of the saying
that a right is not consumed by a
false Demonstration.
§ 59. Some think that less may
be properly expressed in the De-
monstratio, as a man who bought
both Stichus and Eros may state
in his Demonstratio, ‘ Whereas I
bought of you the slave Eros,’ and
sue for Stichus in another action,
because the purchaser of both is the
purchaser of each; and this was
Labeo’s opinion. But if the pur-
chaser of one says he purchased two,
the Demonstratio is false; and the
same applies to actions of Loan for
use and Deposit.
§ 60. I have read in some writers
that in actions of Deposit,and where-
ever condemnation involves infamy,
a plaintiff has consumed his right
to sue if his Demonstratio exceeds
the truth, for instance, if he de-
posited one thing and says he de-
posited two, or if he was struck in
the face and his Demonstratio in an
action of assault says he was struck
in other partsalso. Let us examine
this question. There are two for-
mulas of the action of Deposit, one
of law [or right], the other of fact,
as we said before, $ 47. The formula
of law begins by defining the title
or ground of action in the Demon-
stratio, and then appeals to the law
[or alleges a right] in these terms:
* Whatever the defendant ought
therefore to convey or perform.’
The formula of fact commences at
once with another form of Intentio
Ll
514 DE ACTIONIBUS.
OPORTET; in ea uero quae in factum
concepta est, statim initio intentionis
alio modo [$ 47, Comm.] res de qua
agitur designeturhisuerbis SI PARET
ILLVM APVD (ILLVM REM) ILLAM
DEPOSVISSE : dubitare non debemus,
quin si quis in formula quae in
factum conposita est, plures res de-
signauerit quam deposuerit, litem
perdat, quia in intentione plus
[1v. $$ 53-60.
alleging the title or ground of action,
thus: ‘If it be proved that such a
plaintiff deposited such a thing with
such a defendant. Certainly in the
latter case, that is, in a formula of
fact, if the plaintiff asserts that he
deposited more than he really de-
posited, he loses all, because the
excess is in the Intentio [and he
has consumed his right of action].
(24 uersus in C legi nequeunt)
(24 wereus in C legi nequeunt)
§ 53. Cf. Inst. Just. 4, 6, 83. When the Forum or court in
which an action on a contract is brought happened to differ from
the place specified in the contract as the place where a certain act
(payment, delivery, conveyance, &c.) was to be performed, if the
contract was such as naturally to ground a Condictio (actio stricti
juris) in order to avoid the fault of Plus petitio, which would be
fatal to the present claim and to any subsequent elaim on the
same contract, it was necessary to sue, not by a Condictio which
would be the proper form if the action were brought at the
stipulated place of performance, but by formula Arbitraria. A de-
fendant who lost an action was bound to make payment at the
forum where the action was brought: ibi erit praestandum ubi
petitur, Dig. 30, 47,1. In an actio Arbitraria the judge could
consider the difference of place and meet the demands of equity
by increasing or diminishing the amount which his arbitratus re-
quired the defendant to pay in order to avoid condemnatio, If
the contract were such as to give rise to a Bona fide actio, it
would not be necessary to sue by formula Arbitraria in order to
avoid Plus petitio, for the judex of an actio Ex bona fide had
more discretion than the judex of a Condictio and by the wording
of his commission, Ex fide bona, could allow for the difference of
place if performance were enforced at a place different from that
specified in the contract.
To understand the foregoing we must consider the various tri-
bunals before which an action can be instituted: at what forum or
before what judge a plaintiff can sue a defendant.
The Forum at which an action can be brought is twofold: it is
1v.$$53-60.] COMITY OF NATIONS, FORUM, LEX, 615
either General or Special. The General forum is the forum of the
domicil of the defendant: actor rei forum, sive in rem sive in per-
sonam sit actio, sequitur, Cod. 8, 19, 8. Juris ordinem converti
postulas, ut non actor rei forum sed reus actoris sequatur, Cod, 3,
18, 2. See8 $ 75 comm.
The Special forum depends on the nature of the right to be
litigated : on the department of the code to be applied.
The special forum of a Real right is the forum where the Res
(subject of property, servitude) is situated (forum rei Sitae). This
was not recognized when execution related not to res but to litis
aestimatio, Non ejusdem provinciae praesidem adeundum ubi res
de quibus agitur sitae sunt, sed in quà is qui possidet domicilium
habet. Frag. Vat. § 326.
The special forum of an Obligation is generally, in Roman law,
the forum of the place where the act is covenanted to be performed
(forum Solutionis). In English law it is rather the forum of the
place where the contractors entered into their contract, forum Con-
tractus. It was when a stipulation was enforced at the general
forum of the defendant instead of at the special forum of the
stipulation that it was necessary to use the formula Arbitraria,
The special forum of a Delict is the place where the delict was
committed,
The special forum of Insolvency coincides in Roman law with the
general forum, i. e. is the domicil of the insolvent.
The special forum of Succession (hereditatis petitio) is the forum
of the locus of wrongful possession pro herede or pro possessore,
which will coincide with the place where the subject of inheritance
is situated (forum rei Sitae).
Distinct from the question of the Forum that has jurisdiction
over & right or obligation is the question of the Law that defines
such right or obligation: what local, municipal, or national Law
governs the relation of the plaintiff and defendant, and has to be
administered by the Forum, whatever and wherever it may be, that
exercises Jurisdiction.
The question of the Forum before which a suit must be instituted,
and of the particular Law which such Forum must administer may
arise (1) within the limits of a single state when divided, like the
Roman empire, into municipalities with separate jurisdictions and,
to a certain extent, separate laws; or (2) in more or less intimate
aggregations of provinces, cantons, states, such as we see in Switzer-
Lla
516 DE ACTIONIBUS. [xv. 8$ 53-60.
land, Holland, Germany, America; or (3) between different sove-
reign states.
The territorial, local, or municipal law that governs a particular
question is determined by one of four circumstances: the domicil of
a certain person (testator, intestate, insolvent, husband, disposer,
debtor, &c.): the place where the subject of property is situated:
the place of performance of an act past or future (disposition, stipu-
lated service): or the forum before which a cause is litigated.
For Property and Obligation ex contractu the appropriate Law
is the law of the place which supplies the special forum.
Thus in a question of Property the law to be applied is the lex
loci rei Sitae, E.g. in France property passes by contract, in Prussia
by tradition. A Frenchman in France sells to another Frenchman
his goods in Prussia. The property only passes by tradition. A
Prussian in Prussia sells to another Prussian his goods in France.
The property passes by the mere contract of sale.
In a question of contract the law to be applied is primarily the
Jex loci Solutionis.
The Roman doctrine that Inheritance is a Universal succession
implies that the ideal patrimony has its single seat in the do-
micil of the heritage-leaver and is governed by the law of that
domiei. Thus the law which governs Succession is not, after the
analogy of the former cases, the law of the special forum of Succes-
sion: for whereas the law which governs Succession is the law of
the heritage-leaver’s last Domicil; we have seen that the special
forum of Succession is the forum rei Sitae.
But though the law of the testator’s last domicil principally
governs his dispositions (questions relating to institution, disinherit-
ance, preterition, inofficiositas, legacies, &c.) yet there are some
elements of a will to which other laws must be applied. The capa-
city of the testator (testamentifactio, commercium) must exist both
at the date of executing the will and at the date of his decease:
and must be tested at the former date by the law of his then
domicil. Again the capacity of honoratus (heir or legatee) is
governed by the law of the domicil of honoratus at the time of
testator’s death. Indeed in Roman times, though not in modern
Germany, this capacity was required at tria tempora, the making of
the will, the death of the testator, and the acquisitio by honoratus,
2 §§ 109-114 comm., and was governed at each period by the law
of his then domicil.
rv. § 53-60.] COMITY OF NATIONS, FORUM, LEX. 517
The Capacity of a person for contracting and otherwise disposing
is governed by the law of his domicil: with this reservation, that
Majority once attained is regarded as a vested right which cannot
be divested by a mere change of domicil: by settling, that is to
say, in & new domicil where majority comes later.
The validity of the Form of any disposition (contract, marriage,
testament, &c.) depends on the law by which the substance of the
disposition is governed (the law of the stipulated place of perform-
ance, the law of the husband's domicil, the law of the testator’s
domicil at the time of making his will) But inconveniences would
arise if this law were exclusive. For instance, a Prussian will
can only be made with the assistance of a court. In France no
court is authorized to give its assistance to the execution of a will,
which is the function of the Notary. A Prussian, then, domiciled
in Prussia but dying in France, would be unable to execute a will
if he could only do it in the form prescribed by Prussian law.
Accordingly, as an alternative to the law that governs the disposi-
tion, the law of the place where the disposition is made is accepted :
and the form of a disposition is valid if it satisfies either the proper
law of the disposition or the law of the territory in which the dis-
position is made. The applicability of the latter law is expressed
by the maxim: Locus regit actum. We must except the forms of
Alienation which must always satisfy the lex rei Sitae.
Procedure is governed by the law of the forum where a suit is
instituted. Dilatory exceptions, accordingly, as based merely on
rules of procedure, depend on the law of the forum. But the
material contentions of the defence, that is, the rights of the de-
fendant, whether ipeo jure extinctive, or per exceptionem peremp-
toriam counteractive, of the rights of the plaintiff, are governed by
the same law as the rights of the plaintiff; that is by the local law
that governs the obligation. The Exceptio Sc. Macedoniani and Sc.
Velleiani, however, as relating to personal Capacity, are governed
by the law of the domicil of the person in question.
Procedure in Bankruptcy being a partial or imperfect Execution,
ite leading feature, the Classification or marshalling of creditors,
like other matters of Procedure, is governed by the law of the Forum
by which the execution is superintended, which in this case will be
the law of the domicil of the Insolvent. The priorities of the
purely personal creditors, that is to say, will be governed by the
law of the forum: but where there are hypothecary creditors who
518 DE ACTIONIBUS. [rv. $$ 53-60.
hold mortgages over property of the insolvent in other lands, their
priorities involving a question of Real rights will depend on the lex
rei Sitae. The preliminary Proof by the creditors of their particular
^ claims will be governed by the law (law of the stipulated place of
performance, &c.) which according to general rules is applicable to
the obligations they respectively seek to enforce.
Exceptions to most of the preceding rules are produced by the
existence of Imperious and Anomalous laws: laws based on reli-
gious, moral, political, financial, administrative, instead of purely
civil, motives: such as laws relating to heresy, usury, gambling,
revenue, mortmain; or laws implying institutions (e.g. slavery,
civil death) unrecognised by other states. Each forum enforces its
own Imperious or Anomalous laws, and disregards those of its
neighbour. For instance a monogamist forum will not enforce
polygamistic laws, nor will any forum enforce the penal laws which
a neighbour levels against its coreligionists.
Obligation founded on Delict is always the subject of such Im-
perious laws: accordingly civil obligation ex delicto, unlike obliga-
tion ex contractu, is governed by the laws of the forum by which it
is remedied.
The rules of which the above are a specimen constitute what
is called the Comity of nations or Private international law.
The ideal aim of the Comity of nations is: that the judgment
passed on any controversy should be identical whatever may be
the tribunal that happens to exercise jurisdiction. Savigny, System,
vol. 8.
The penalty of pluris petitio in respect of time was reduced
by Zeno, who merely doubled the term that was still to ran before
payment, and required the creditor to pay the costs of the former
action before he brought a second, Cod. 3, 10, 1. The effect of
this was to change the meaning of the term *dilatoria which,
as applied to an exceptio and opposed to peremptoria, denoted an
exceptio alleging pluris petitio in Time.
When Gaius wrote, such an exception, if successfully alleged,
was just as fatal to the creditor as an exceptio peremptoria. It was
temporary, not in respect of its effects, but of the limited period
during which it was at the command of the debtor. But after Zeno
such an exceptio was temporary in its effects, and did not prevent
a renewal of the action after a certain lapse of time, that is, after
the expiration of the term originally fixed for the payment, and an
rv. §§ 53-60.] COMITY OF NATIONS, FORUM, LEX. 519
additional term measuring the temporal excess of the plaintiff’s
claim. Justinian retained Zeno’s law in respect of Time, and
disarmed the other modes of pluris petitio of their terrors, by
merely making the creditor liable to three times the amount of
the loss that his exorbitant claim had caused to the debtor, par-
ticularly in respect of the fees (sportulae) of the executive officers
(executores), Cod. 3, 10, 2.
$ 55. A plaintiff who had made & mistake in the subject of his
claim was allowed by Justinian to amend his claim without insti-
tuting a new action.
It seems from this paragraph that the title or ground of action
(causa debendi) e.g. testamentum, stipulatio, was sometimes specified
in the Intentio. Perhaps this was done in Condictio certi, which
had no Demonstratio, and then availed to prevent the consumption
of the right of action; that is, the allegation of the plea of Res
judicata when the plaintiff afterwards claimed the same sum but
founded his claim on a different title. Cf. § 181.
$ 56. A plaintiff whose intentio claimed less than he was entitled
to was allowed by Zeno to obtain the full amount without institut-
ing a new action, Inst. 4, 6, 34. |
$ 58. As pluris petitio implies intentio certa, and the existence
of a demonstratio involves intentio incerta, it follows that excess
in the demonstratio cannot involve pluris petitio. Again, as the
demonstratio determines what is the res in judicium deducta, a
falsa demonstratio cannot consume the true ground of action.
$ 60. It appears that some jurist had regarded the first clause of
an actio in faetum, si paret . . . fecisse, as a demonstratio. Gaius
himself, in speaking of this clause used ambiguous terms, nominato
eo quod factum est, $ 46. But it is clear from § 60 that he holds
it to be no Demonstratio, but an Intentio.
The plaintiff who lost an actio in factum did not strictly speaking
lose his right to bring another action, for novatio, or transformation
of his original right into a right to have judgment, was only
operated by the commencement of a personal action in jus. But
this made no practical difference, for though his own right (ipsum
jus) was not extinguished, it was counterpoised by an opposite nght
of the defendant based on the result of the trial (exceptio rei judi-
catae), which would cause any suit instituted by the plaintiff to be
520
COMPENBATIO
$ 61. (In bone fidei autem judi-
cits libera potestas permitti. videtur
judici ex bono et equo estimandi,
quantum actori vestitus debeat, in
quo et illud) continetur, ut habita
ratione eius quod inuicem actorem
ex eadem causa praestare oporteret,
in reliquum eum cum quo actum
est, condemnare.
$62. Sunt autem bonae fidei
iudicia haec: ex empto uendito,
locato conducto, negotiorum ges-
torum, mandati, depositi, fiduciae,
pro &ocio, tutelae, rei uxoriae, (com-
modati, pigneraticium, — familiae
erciscundae, communi diuidundo,
$ 63. Liberum est tamen iudici
nullam omnino inuicem conpensa-
tionis rationem habere; nec enim
aperte formulae uerbis praecipitur,
sed quia id bonae fidei iudicio con-
ueniens uidetur, ideo officio eius
contineri creditur.
$64. Alia causa est illius actionis
qua argentarius experitur: nam is
cogitur cum conpensatione agere, et
ea conpensatio uerbis formulae ex-
primitur ; adeo quidem, ut ab initio
conpensatione facta minus intendat
sibi dart oportere. ecce enim si
sestertiwm X milia debeat Titio, at-
que ei Xx debeantur, sic intendit
SI PARET TITIVM SIBI X MILIA DARE
OPORTERE AMPLIVS QVAM LPSE TITIO
DEBET.
$ 65. Item bonorum emptor cum
deductione agere iubetur, id est et
in hoc solum aduersarius eius con-
demnetur quod superest, deducto eo
quod inuicem ei bonorum emptor
defraudatoris nomine debet.
DE ACTIONIBUS.
[rv. § 61—68.
ET DEDUCTIO.
$61. (Inst. 4, 6, 30. In equitable
actions the judex has full power to
assess on good and equal grounds
the amount due to the plaintiff)
and can take into account the cross
demand in the s&me transaction of
the defendant, and condemn the de-
fendant in the remainder.
$ 62. Equitable actions are those
of Purchase and Sale, Letting and
Hiring, Voluntary work, Agency,
Deposit, Trust, Partnership, Guar-
dianship, dower, Hoan of use, Mort-
gage, Partition of inheritance, Dis-
solution of joint ownership, Name-
less contract |.
$63. The judex may, if he
pleases, refuse to take compensation
into account, since be is not ex-
pressly instructed by the terms of
the formula to make compensation,
but as it seems fit and proper in an
equitable action, the power is as-
sumed to be contained in his com-
mission.
§ 64. It is otherwise in the action
instituted by a banker for the bal-
ance of an account, for the banker
is compelled to make express recog-
nition of compensation in his formu-
là, and accordingly allows for any
credit-items from the first, and in
his Intentio only claims the balance.
If he owes ten thousand sesterces to
Titius and Titius owes him twenty
thousand, his Intentio runs as fol-
lows: ‘If it be proved that Titius
owes him ten thousand sesterces
more than he owes Titius.
§ 65. Likewise the purchaser of
a bankrupt’s estate must notice any
cross demand in his formula, and in
the condemnatio only require the
insolvent’s debtor to pay what he
owes after deduction of what is due
to him from the purchaser as the
insolvent's successor.
1v. $$ 61-68.]
§ 66. Inter conpensationem au-
tem quae argentario opponitur, et
deductionem quae obicitur bonorum
emptori, illa differentia est, quod in
conpensationem hoc solum uocatur
quod eiusdem generis et naturae
est: ueluti pecunia cum pecunia
conpensatur, triticum cum tritico,
uinum cum uino; adeo ut quibus-
dam placeat non omni modo uinum
cum uino aut triticum cum tritico
conpensandum, sed ita si eiusdem
naturae qualitatisque sit. in de-
ductionem autem uocatur et quod
non est eiusdem generis. itaque
(st ); sl uero pecuniam petat
bonorum emptor et inuicem fru-
mentum aut uinum is debeat, de-
ducto quanti id erit, in reliquum
experitur.
$ 67. Item uocatur in deductio-
nem et id quod in diem debetur;
conpensatur autem hoc solum quod
praesenti die dedetur.
$ 68. Praeterea conpensationis
quidem ratio in intentione ponitdr ;
quo fit, ut si facta conpensatione
plus nummo uno intendat argen-
tarius, causa cadat et ob id remi
perdat. deductio uero ad condem-
nationem ponitur, quo loco plus
petenti periculum non interuenit ;
utique bonorum emptore agente,
qui licet de certa pecunia agat, in-
certi tamen condemnationem conci-
pit.
COMPENSATIO ET DEDUCTIO.
521
$ 66. Between the compensation
which is made against the claim of
the banker and the deduction from
the claim of the execution purchaser
there is this difference, that com-
pensation is confined to claims of
the same genus and nature ; money,
for instance, is set off against money,
wheat against wheat, or wine against
wine; and some even hold that not
every kind of wine or every kind of
wheat may be set off against wine
and wheat, but only wine and wheat
of the same nature and quality.
Deduction, on the contrary, is made
of a debt of a different genus. Thus,
if an execution purchaser sues for
money owed tothe insolvent a person
to whom he himself as the insolvent's
successor owes corn or wine, he de-
ducts the value of the corn or wine
and brings the action only for the
residue.
$ 67. Again, deduction is made
of debts not yet due, compensation
only of debts already due.
$ 68. Again, compensation is in-
gerted in the Intentio, and if the In-
tentio of the banker is one sesterce
more than the balance, he loses his
present cause and his future claim;
whereas the deduction is introduced
in the Condemnatio, where an ex-
cessive claim is not hazardous; es-
pecially as the execution purchaser,
though the debt he claims is cer-
tain, sues for an uncertain sum in
the Condemnatio.
§ 61. Compensation was originally limited to claims growing
out of the same ground (ex eadem causa, § 61); growing out of a
transaction, that is, that generated either a bilateral obligation
and gave to both parties an actio directa, or a semi-bilateral ob-
ligation, giving to one party actio directa and to the other actio
eontraria. In other words Compensatio was confined to actions
ex bona fide. The emperor Marcus Aurelius made the identity of
title (eadem causa) unnecessary: he allowed Compensatio to be
522 DE ACTIONIBUS. [rv. $$ 61-68.
urged against claims based on transactions that could only
generate unilateral obligations: in other words, he admitted Com-
pensatio in Condictiones or stricti juris actiones. (It was merely
by inadvertence that Justinian in compiling his own Institutions
out of those of Gaius retained the words ex eadem causa in the
definition of Compensation, Inst. 4, 6, 39. Savigny § 45.)
In an actio bonae fidei Compensation of the defendant's counter-
claim ex eadem causa would not require to be commanded by an
express exceptio, but would be included in the offictum judicis;
ie. would be made by the judex in virtue of the terms EX BONA
FIDE contained in the formula which gave him his commission.
In an actio strieti juris the judex was empowered to make com-
pensation by the Exceptio Doli mali: Sed et in strictis judiciis
ex rescripto divi Marci, opposita doli mali exceptione, compensatio
inducebatur, Inst. 4, 6, 30. The same exceptio was doubtless ne-
cessary even in an action ex bona fide when the counterclaim
arose from an independent transaction (ex alia causa) In emptio-
venditio the exceptio non-adimpleti contractus puts forward a
counterclaim founded on the same transaction, Vangerow § 607.
The exception was of the form: Si in ea re nihil dolo malo Auli
Agerii factum sit neque fiat, § 119: and we find in the Digest a
definition of Dolus that seems intended to apply to a claim for Com-
pensation : Dolo facit qui petit quod"redditurus est, Dig. 44, 4, 8.
Some writers hold that this exceptio empowered the judex, not
to make compensation but to give judgment against the plaintiff
on the ground of Plus petitio; and they explain that this was not.
so iniquitous as at first sight it may appear, as the loss of the action
would only be a penalty to the plaintiff for refusing to employ a
formula containing a Compensatio or Deductio, the usage of these
formulae being in effect generalized by the rescript of Marcus
Aurelius.
Vangerow, on the other hand, observes that we have no evi-
dence that an intentio modified by a Compensatio or Deductio was
ever employed by any plaintiff but the Argentarius and Bonorum
emptor: while we are expressly informed by Theophilus 4, 6, 30,
that the effect of Exceptio doli was to diminish the condemnatio;
which again is consistent with what is said of the general nature of
exceptio: Exceptio est conditio quae modo eximit reum condem-
nationi, modo minuit damnationem, Dig. 44, 1, 22.
As Gaius flourished under Marcus Aurelius, and makes no men-
rv. §§69-74a.] ACT. ADJECTITIAE QUALITATIS. 523
tion of his rescript, we must infer that it either was issued after
the publication of these Institutions, or was mentioned in the pre-
ceding paragraphs where the manuscript is now defective.
Justinian extended Compensation to Real actions, Cod. 4, 81, 14.
$ 66. The balance for which the banker sued was not the balance
of a Personal account, but the balance of one of the Real accounts
for corn, wine, oil, &c., into which the debtor’s total personal account
was subdivided. The law courts, that is, took notice of the cus-
tomary practice of the book-keepers, and a question naturally arose
as to the extent to which a personal account could be subdivided.
§ 68. It was the duty of the Argentarius to keep the accounts of
his customers: whereas the Bonorum emptor might well be ignorant
of the transactions of the msolvent. This explains the greater
rigour with which the Argentarius was treated.
A defendant was allowed to deduct his cross demand or inde-
pendent debt from the demand of the plaintiff by the English
courts of Equity, but not by the courts of Common law, until the
Statutes 2 Geo. II, c. 22; 8 Geo. II, c. 24, introduced the plea of
set-off into the courts of Common law.
DE ACTIONIBUS EX CONTRACTU FILIORUM ET SERVORUM.
$ 69. Quia tamen superius men-
tionem habuimus de actione qua
in peculium filiorum familias ser-
uorumque agitur, opus est ut de
hac actione et de ceteris quae eorun-
dem nowine in parentes dominosue
dari solent, diligentius admoneamus.
$ 70. Inprimis itaque si iussu
patris dominiue negotium gestum
erit, in solidum praetor actionem in
patrem dominumue conparauit; et
recte, quia qui ita negotium gerit,
magis patris dominiue quam filii
seruiue fidem sequitur.
$ 71. Eadem ratione conparauit
duas alias actiones, exercitoriam et
instiforiam. tunc autem exercitoria
locum habet, cum pater dominusue
filium seruumue magistrum naut
praeposuerit, et quid cum eo eius
rei gratia cui praepositus fuerit,
$69. Às we have mentioned
[cf. Inst. 4, 6, 36. 4, 7, pr.] the
action in respect of Peculium, we
must explain this action and the
others by which fathers and masters
are sued for the debts of their sons
or slaves.
§ 70. Firstly, if it was at the
bidding of the father or master that
the plaintiff contracted with the son
or slave, the father or master may
be sued for the whole amount, for
then the contract was made in
reliance on the credit of the father
or master rather than of the son or
slave.
§ 71. On the same principle the
praetor grants two other actions,
one to recover the debt of a ship-
captain, the other to recover the
debt of a manager or factor. The
actio exercitoria lies against a father
or master who has appointed a son
524
[negotium] gestum erit. cum enim
ea quoque res ex uoluntate patris
dominiue contrahi uideatur, aequis-
simum esse uisum est in solidum
actionem (in ewm) dari. quin etiam,
licet extraneum quisque magistrum
naui praeposuerit siue seruum siue
liberum, tamen ea praetoria actio
in eum redditur. ideo autem exer-
citoria actio appellatur, quia exerci-
tor uocatur is ad quem cottidianus
nauis quaestus peruenit. institoria
nero formula tum locum habet, cum
quis tabernae aut cuilibet negotia-
tioni filium seruumue aut quemlibet
extraneum siue seruum siue liberum
praeposuerit, et quid cum eo eius
rei gratia cui praepositus est, con-
tractum fuerit. ideo autem insti-
toria uocatur, quia qui tabernae
praeponitur, institor appellatur.
quae et ipsa formula in solidum est.
$72. Praeterea tributoria quoque
actio in patrem dominumue con-
stituta est, cum filius seruusue in
peculiar merce sciente patre do-
minoue negotietur. nam si quid
eius rei gratia cum eo contractum
fuerit, ita praetor ius dicit, ut quid-
quid in Ats mercibus erit quodque
inde receptum erit, id inter ( patrem)
dominum(ue), si quid ei debelitur,
et celeros creditores pro rata portione
distribuatur. Et quia ipsi patri do-
minove distributionem permittit, st
quis ex creditoribus queratur, quasi
minus ei tributum sit quam opor-
tuerit, hance ei actionem adcom-
modat, quae tributoria appellatur.
$ 72a. Praeterea introducta est
actto de peculio deque eo quod in rem
patrisdominive versum erit, ut quam-
vis sine voluntate patris dominive
negotium gestum erit, tamen sive quid
tn rem eius versum fuerit, td totum
praestare debeat, sive quid non sit
in rem eius versum, id eatenus
praestare debeat, quatenus peculium
patitur. In rem autem patris do-
minive versum intellegitur quidquid
DE ACTIONIBUS.
[1v. $$ 69—74 a.
or slave to be captain of a ship, to
recover a debt incurred by the son
or slave in his character of captain.
As such a contract is made with
the consent of the father or master
he is justly liable for the whole. So
if a man appoint another person's
slave or a freeman to be captain,
he may be sued by the praetorian
action. The action is called Exer-
citoria because exercitor signifies
a person who takes the daily
profits of a ship. The actio In-
stitoria lies against a man who
appoints his son or slave or another
person's slave or a freeman to man-
age a shop or any business, to re-
cover any debt incurred in that
business. It is called Institoria
because the manager of a shop is
called Institor, and it is brought for
the whole amount.
§ 72. The edict provides another
action, called Tributoria, in respect
of the part of the Peculium which
is devoted to a certain trade carried
on by a son or slave with the know-
ledge of his father or master. If
any debts are contracted in that
trade the praetor orders this portion
of the Peculium and its profits to
be distributed between the father or
master and other creditors in pro-
portion to their claims, and charges
the father or master with the dis-
tribution, and any creditor who
complains that he has received leas
than his share can bring this action.
$ 72a. There isalso an action in
respect of Peculium and of what has
been converted to the uses of the
father or master. When a debt is
contracted without the consent of
the father or master, if any portion
was converted to his uses, he is
liable to that amount; if no ion
was converted, he is liable to the
extent of the peculium. Conversion
to his uses is any necessary expen-
rv. §§ 69-744] ACT. ADJECTITIAE QUALITATIS.
necessario tn rem eius impenderit
Jülius servusve, veluti st mutuatus
pecuniam creditoribus evus solverit,
aut aedificia ruentia fulserit, aut
familiae frumentum emerit, vel etiam
fundum aut quamlibet aliam rem
necessariam, mercatus erit. itaque
st ex decem ut puta sestertiis quae
servus (uus a Titio mutua accent
creditort tuo quinque sestertia sol-
verit, reliqua vero quinque quolibet
modo consumpserit, pro quinque
quidem in. solidum damnari debes,
pro ceteris vero quinque eatenus,
quatenus tn peculio sit: ex quo
scilicet apparet, si tota decem sester-
tia in rem tuam versa fuerint, tota
decem sestertia — Titium — consequi
posse. licet enim una est actio qua
de peculio deque eo quod in rem
pairis dominive versum sit agitur,
tamen duas habet. condemnationes.
Waque tudex aput quem ea actione
agitur ante dispicere solet, an in
rem patris dominive versum sit, neo
aliter ad peculii aestimationem tran-
sit, quam 8 aut nihil in rem patris
dominive versum intellegatur, aut
non totum. (Cf. Inst. 4, 7, 4.)
$73. Cum autem quaeritur, quan-
tum in peculio sit, ante deducitur
quod patri dominoue quique in eius
potestate sit, a filio seruoue debetwr,
et quod superest, hoc solum pecu-
hum esse intellegitur. aliquando
tamen id quod ei debet filius seruus-
ue qui in potestate patris dominiue
sit, non deducitur ex peculio, uelut
siis cui debet, in huius ipsius pe-
culio ait.
$ 74. Ceterum dubium non est,
quin et is qui iussu patris dominiue
contraxit cuique exercitoria uel in-
Btitoria formula conpetit, de peculio
aut de in rem uerso agere possit.
sed nemo tam stultus erit, ut qui
aliqua illarum actionum sine dubio
solidum consequi possit, in difficul-
tatem se deducat probandi habere
peculium eum cum quo contraxerit,
525
diture on his account, as payment
of his creditors, repair of his falling
house, purchase of corn for his
slaves, purchase of an estate for him,
or any other necessary. If out of
ten thousand sesterces which your
slave borrowed of Titius he paid
your creditor five thousand, and
spent the remainder in some other
way, you are liable for the whole
of the five thousand, and for the
remainder to the extent of the pe-
culium. Ifthe whole ten thousand
was applied to your uses you are
liable for the whole. It is a single
action that is brought in respect of
Peculium and of conversion to uses,
but it has two condemnatory clauses.
The judex first looks to see whether
there has been an application to the
uses of the father or master, and
does not proceed to ascertain the
amount of the peculium unless there
was no such application or only a
partial application.
§ 73. In ascertaining the amount
of the peculium, deduction first is
made of what is owed to the father
or master or to a person in his
power, and the residue only is
treated as peculium. Sometimes
what is owed to a person in his
power is not deducted, for instance,
if it is owed to a vicarius, that is,
to a slave in the peculium of the
slave.
§ 74. There 1s no doubt that a
creditor who contracted with the
sanction of the father or master
with a son or slave, and one who
might sue by exercitoria or insti-
toria, may bring an action in respect
of the peculium or of conversion
to uses; but it would be foolish to
relinquish the actions by wbich he
can recover the whole, and under-
526
exque eo peculio posse sibi satisfieri,
uel id quod persequitur, in rem
patris dominiue uersum esse.
$ 74a. Js quoque cui tributoria
actio conpetit, de peculio uel de in
rem uerso agere potest. sed huic
sane plerumque expedit hac potius
actione uti quam tributoria. nam
in tributoria eius solius peculii ratio
habetur, quod in his mercibus est
quibus negotiatur filius seruusue
quodque inde receptum erit; at in
actione peculi, totius, et potest
quisque tertia forte aut quarta uel
etiam minore parte peculii nego-
tiari, maximam uero partem peculii
in aliis rebus habere; longe magis
si potest adprobari, id quod (dederit
is qui cum filio seruoue) contraxit,
in rem patris dominiue uersum esse,
ad hane actionem transire debet;
nam, ut supra diximus, eadem for-
mula et de peculio et de in rem
uerso agitur.
DE ACTIONIBUS.
[1v. $$ 69-74 a.
take the trouble of proving a con-
version to uses or the existence of
& peculium sufficient in amount to
cover the whole of the debt.
$ 74a. A plaintiff who can sue
by Tributoria may sue in respect of
peculium and conversion to uses,
and will generally find it expedient
to do so; for Tributoria only re-
lates to that portion of the peculium
which consists of the merchandise
and the proceeds of the merchandise
with which the son or slave traded,
but the others extend to the whole
peculium; and a man may trade
with only a third or fourth or less
part of his peculium and have the
rest invested in other concerns. A
fortiori, if the plaintiff can prove
that the whole of the debt was con-
verted to the uses of the father or
master, he should use this action
instead of Tributoria ; for, as I said
above, the same formula lies both
in respect of peculium and of what
has been converted to uses.
§ 71. The term Institor includes a banker (mensae praepositus),
bailiff (agris colendis), foreman (mercaturis), bagman (sed etiam eos
institores dicendos placuit, quibus vestiarii vel lintearii dant vestem
circumferendam et distrahendam, quos vulgo circitores appellamus,
Dig. 14, 8, 5), and any similar agent, of whatever age or sex (nam
et plerique pueros puellasque tabernis praeponunt, Dig. 14, 8, 8).
The relation of the free captain (magister) to the shipowner
(exercitor) and of the free manager, overseer, factor (institor) to
his employer (dominus), was the germ or first manifestation of the
general institution of Agency (mandatum), an institution that was
slow in reaching its complete development in Roman jurisprudence.
Actio adjectitia was so called because of the Adjectio or additional
clause which was introduced in the formula of an action brought
against a superior (father, owner, or principal) for an obligation
incurred by an inferior (son, slave, or agent). By the civil law the
inferior could not bind the superior, i.e. deteriorate his condition
even with the consent of the superior, Savigny, $ 113. But the
Praetor besides the actio directa (empti, locati, &c.) which lay
rv. §§ 69-74.a.] ACT. ADJECTITIAE QUALITATIS. 527
against the inferior, granted similar actions with a modified formula
(actio empti de peculio, &c.) against the superior. They are six in
number: Quod jussu, Exercitoria, Institoria, De peculio, De in rem
verso, Tributoria. In the formula for De peculio, and De in rem
verso (one formula with a double condemnatio), the adjectio was
annexed to the condemnatio. Keller, Litis Contestatio, § 50, sup-
poses that the following may have been its simplest form: Maevius
judex esto, Quod Titius Seio filiofamilias mensam argenteam com-
modavit, qua de re agitur, quicquid ob eam rem Seium Titio dare
facere oportet ex fide bona ejus, id [but see § 47 comm.] judex
Gaium patrem duntaxat De peculio aut Quod in rem Gaii patris
versum est, condemnato. In Quod jussu, Exercitoria, and Institoria,
the Adjectio was apparently a part of the demonstratio. Keller sug-
gests the following formula: Quod jussu Gaii patris Seius filius-
familias a Titio hominem emit, quicquid ob eam rem Seium Titio
dare facere oportet, id [see $ 47 comm.] Gaium patrem condemna.
In all of them the inferior alone was mentioned in the intentio,
§ 34 comm. We have not sufficient data for determining the nature
of the formula in Tributoria, The knowledge of the father, the in-
adequate distribution, the limitation of liability to the merx peculiaris,
would seem to require an Adjectio to all three parts of the formula,
By the identity of the actions De peculio and De in rem verso, the
superior could be successively sued in two characters. If the actions
had been distinct, then, as their intentio must have been identical,
Litis Consumptio would have hindered their successive institution.
The inferior and superior were Correales, 3 $ 110 comm., and
against whichever an action was brought, the intentio averred the
debt of the inferior, so that on Litis Contestatio against either, the
other was discharged by Res in judicium deducta. To remedy this
injustice Justinian enacted that Correales were only discharged by
Solutio.
Besides the equitable actions introduced by the praetor, a pater-
familias was rendered liable by the act of his son or slave to a
condietio, that is, was liable under the civil law to an action stricti
juris in two cases (which we must probably limit with Savigny
by the hypothesis of a Money loan) if the act turned to bis profit
(si in rem ejus versum est), and if it had received his sanction, for
& contract entered into by his order was regarded as his contract.
The liability of the superior follows from the explanation that has
been given of the gist of Condictio,
528
DE ACTIONIBUS.
[1v. $$ 75-81.
DE NOXALIBUS ACTIONIBUS.
$75. Ex maleficizs filiorum fami-
lias seruorumque, ueluti si furtum
fecerint aut iniuriam commiserint,
noxales actiones proditae sunt, uti
liceret patri dominoue aut litis
aestimationem sufferre aut noxae
dedere. erat enim iniquum nequi-
tiam eorum ultra ipsorum corpora
parentibus dominisue damnosam
esse.
§ 76. Constitutae sunt autem
noxales actiones aut legibus aut
edicto praetoris: legibus, uelut furti
lege Xi! tabularum, damni iniuriae
lege Aquilia ; edicto praetoris, uelut
iniuriarum et ui bonorum raptorum.
$ 77. Omnes autem noxales ac-
tiones caput secuntur. nam sifilius
tuus seruusue noxam commiserit,
quamdiu in tua potestate est, tecum
est actio; si in alterius potestatem
peruenerit, cum illo incipit actio
esse; si sul iuris coeperit esse, di-
recta actio cum ipso est, et noxae
deditio extinguitur. ex diuerso quo-
que directa actio noxalis esse tnci-
pit. nam si pater familias noxam
commiserit, et is se in adrogationem
tibi dederit aut seruus tuus esse
coeperit, (quod) quibusdam casibus
accidere primo commentario tradi-
dimus, incipit tecum noxalis actio
esse quae ante directa fuit.
$ 78. Sed si filius patri aut
seruus domino noxam commiserit,
nulla actio nascitur; nulla enim
omnino inter me et eum qui in po-
$ 75. For a delict, such as theft
or outrage, committed by a son or
slave, a noxa] action lies against the
father or master, who has the op-
tion of either paying the damages
assessed or surrendering the delin-
quent. For it is not just that the
misdeed of a son or slave should
involve the father or master in any
detriment beyond the loss of his
body.
§ 76. Noxal actions were intro-
duced partly by law, partly by the
edict of the praetor: for theft, by
the law of the Twelve Tables; for
injury to property, by the lex
Aquilia; for outrage and rapine,
by the edict.
§ 77. Noxal actions lie against
the person who is lord or chief of
the malefactor at the time when
they are brought, although he was
not so at the time of the commission
of the injury. If your son or slave
has done & wrong while he is in
your power, an action lies against
you; if he falls under the potestas,
patria ordominica, of another person,
an action lies against his new su-
perior: if he becomes hisown master,
a direct action lies against the of-
fender himself (as his own lord), and
the noxal action is extinguished.
Conversely, a direct action may
change into noxal: if a pater-
familias has done a wrong, and
has become your son by adrogatio
or your slave, as I showed in the
first book might happen in certain
circumstances, a noxal action lies
against you in place of the direct
action which formerly lay against
the wrong-doer.
§ 78. But no action lies for an
offence by a son or slave committed
against his father or master; for
between me and a person in my
1v. $$ 75-81.]
testate mea est, obligatio nasci
potest. ideoque etsi in alienam
potestatem peruenerit aut sui iuris
esse coeperit, neque cum ipso neque
cum eo cuius nunc in potestate est,
agi potest. unde quaeritur,si alienus
seruus filiusue noxam commiserit
mihi, et is postea in mea esse coe-
perit potestate, utrum intercidat
aclio an quiescat. nostri praecep-
tures intercidere putant, quia in
eum casum deducta sit, in quo con-
sistere non potuerit, ideoque, licet
exierit de mea potestate, agere me
non posse; diuersae scholae auc-
tores, quamdiu in mea potestate sit,
quiescere actionem putant, quia ipse
mecum agere non possum, cum uero
exierit de mea potestate tunc eam
resuscitari.
$ 79. Cum autem filius familias
ex noxali causa mancipio datur,
diuersse scholae auctores putant
ter eum mancipio dari debere, quia
lege Xil tabularum cautum sit, (ne
aliter fius de potestate patris) ex-
eat, quam si ter fuerit mancipatus ;
Sabinus et Cassius ceterique nos-
trae scholae auctores sufficere unam
mancipationem crediderunt, et illas
tres legis Xii tabularum ad uolun-
tarias mancipationes pertinere.
$ 80. Haec ita de his personis
quae in potestate (sunt), siue ex
contra|ctu siue ex maleficio earum
—. quod uero ad eas | personas
quae in manu mancipioue sunt, ita
ius dicitur, ut cum ex contractu
earum agatur, nisi ab eo cuius iuri
subiectae sint, in solidum defen-
dantur, bona quae earum futura
forent, si etus iurt subiectae non
essent, ueneant. sed cum rescissa
capitis deminutione cum iis imperio
DE NOXALIBUS ACTIONIBUS.
529
power there is no obligation; and,
consequently, if he passes under the
power of another, or becomes his
own master, neither he nor his
master can be sued. Hence it
has been asked whether, if another
man's son or slave has wronged
me and passes into my power, the
action is extinguished, or is only
in abeyance. Our school maintairs
that it is extinguished, because it
has come into a condition in which
an action cannot exist, and there-
fore if he pass again out of my
power I have no action. The other
school maintain that while he is
in my power the action is only
in abeyance, because I cannot bring
an action against myself, and re-
vives when he passes out of my
power.
§ 79. When a filiusfamilias is
surrendered by mancipation in
satisfaction of judgment in a
noxal action, the other school
hold that he ought to be manci-
pated three times, because the law
of the Twelve Tables provides that
a son cannot pass out of the power
of the father unless he is three
times mancipated. Sabinus and
Cassius and the other authorities
of my school hold that a single
mancipation is sufficient, and sup-
pose that the three conveyances of
the Twelve Tables are only required
in voluntary emancipation.
§ 80. So much for the contracts
and delicts of persons under power.
As to persons subject to manus or
mancipium, when they are sued for
contracts, unless they are defended
against the whole damages by the
superior to whom they are subject,
the goods which would have be-
longed to them but for their sub-
jection are ordered by the praetor
to be sold. An action rescinding
the change of status and deriving
Mm
530
continent iudicto agitur,
(13 wersus in C legi nequeunt)
Xil tabularum
——| (7 uersus tn C legi nequeunt)
$81. Quid ergo est 1 — diximus
—non permissum fuerit ei mortuos
homines dedere, tamen etsi quis eum
dederit qui fato suo uita excesserit,
aeque liberatur.
DE ACTIONIBUS.
[rv. $$ 75-81;
its binding force from the praetor'a
executive supremacy...
$ 81. Bat though I said that the
surrender of & dead man was not
allowed yet if he died a natural
death and the body is surrendered,
the judgment is satisfied.
§ 77. Gaius explained the various modes by which a man might
lose his freedom, 1 § 160. A person who fraudulently allowed him-
self to be sold with the view of sharing the purchase money, Inst.
1, 3, 4, a freedman ungrateful to his patron, Inst. 1, 16, 1, a woman
who persisted in intercourse with a slave without the permission of
the master, all forfeited their freedom, the last by a Senatuscon-
sultum Claudianum which was repealed by Justinian, Inst. 3, 12, 1.
In the older law a man who failed to register himself at the
census (incensus) lost his freedom; and by the Twelve Tables
the fur manifestus and insolvent debtor were assigned (addicti) to
the injured party, though, apparently, 3 § 189, not reduced to slavery.
§ 78. Justinian decides in favour of the Sabinians, Inst. 4, 8, 6,
that the action for the delict of a slave is extinguished, without
possibility of future revival, when the delinquent slave comes into
the power of the person aggrieved.
§ 81. The death of a delinquent slave extinguished the liability
of the master.
As the Romans became more civilized the noxal surrender of a
son or daughter by the parent became repugnant to public feelings,
and Justinian speaks of it as a thing of the past. A filiusfamilias
was only liable to execution against his estate. Incarceration for
insolvency was confined to debts arising from a money loan. If.
& son had contracted such a debt with his father's sanction, the
creditor had his remedy against the father: if the loan had not
been sanctioned the debt was irrecoverable. If the father was
insolvent, both son and father were liable to incarceration.
With the principle of noxal actions we may compare the law of
Damni infecti (damage anticipated), which allowed the owner of a
dilapidated house to exonerate himself from damages caused to his
neighbours! property by surrendering the house; or the rule of
English law, by which the responsibility of a shipowner for damage
done without his fault to another ship or cargo was limited to the
Iv. §§ 82-87.] DE HIS PER QUOS AGERE POSSUMUS.
§31
value of his ship and the freight she was earning at the time,
53 George III, c. 159.
Mischief (pauperies) oceasioned by an animal might by a law of
the Twelve Tables be atoned for by noxae deditio, Inst. 4, 9.
DE HIS PER QUOS
$ 82. Nunc admonendi sumus
agere nos aut nostro nomine aut
alieno, ueluti cognitorio, procura-
torio, tutorio, curatorio, cum olim
quo tempore legis actiones in usu
fuissent, alieno nomine agere non
liceret, praeterquam ex certis causis.
$ 83. Cognitor autem certis uer-
bis in litem coram aduersario sub-
stituitur. nam actor ita cognitorem
dat QVOD EGO A TE uerbi gratia
FVNDVM PETO, IN EAM REM L.
TITIVM TIBI COGNITOREM DO; ad-
uersarius ita QVIA TV A ME FVNDVM
PETIS, IN EAM (REM) TIBI P. MEV-
IVM COGNITOREM DO. potest ut
actor ita dicat QVOD EGO TECVM
AGERE VOLO, IN EAM REM COGNITO-
REM DO, aduersarius ita QVIA TV
MECYM AGERE VIS, IN EAM REM
COGNITOREM DO. nec interest prae-
sens an absens cognitor detur; sed si
absens datus fuerit, cognitor ita erit,
&i cognouerit et susceperit officium
cognitoris.
§ 84. Procurator uero nullis certis
uerbis in litem substituitur, sed ex
solo mandato et absente et ignorante
aduersario constituitur. quin etiam
sunt qui putant eum quoque pro-
curatorem uideri cui non sit man-
datum, si modo bona fide accedat
ad negotium et caueat ratam rem
dominum habiturum ; quamquam
et ille cui mandatum (est), plerum-
que satisdare debet, quia saepe
mandatum initio litis in obscuro
est et postea apud iudicem ostendi-
tur.
AGERE POSSUMUS.
$ 82. A man may sue either for
himself or for another as cogni-
ior, procurator, guardian, curator,
whereas in the days of statute-pro-
cess a man could only sue for
another in certain cases.
$83. A cognitor for & cause is
appointed by a set form of words in
the presence of the adversary. The
plaintiff appoints a cognitor in the
following form: *Whereas I sue
you for, say, an estate, in that
matter I appoint Lucius Titius as
my cognitor;' the defendant thus :
‘Whereas you sue me for an estate,
in that matter I appoint Publius
Maevius as my cognitor. Or the
plaintiff may use the words:
‘ Whereas I intend to sue you, in
that matter I appoint Lucius Titius
as my cognitor;’ and the defendant
these: ‘ Whereas you intend to sue
me, in that matter I appoint Publius
Maevius as my cognitor.’ It is im-
material whether the person named
as cognitor is present or absent ;
but if an absent person is named,
he is only cognitor if he consents
and undertakes the office.
§ 84. A procurator is appointed
in any words that amount to in-
structions, even in the absence and
without the knowledge of the ad-
versary. According to some, in-
structions are not requisite if a
person undertakes the office in good
faith and engages that the principal
will ratify his proceeding. Although
he who acting under instructions is
also as a rule bound to give this
security, the fact that he is so acting
being often concealed in the initial
stage of the suit, and only coming
Mm 2
532
§ 85. Tutores autem et curatores
quemadmodum constituantur, primo
commentario rettulimus.
§ 86. Qui autem alieno nomine
agit, intentionem quidem ex persona
domini sumit, condemnationem au-
tem in suam personam conuertit.
nam si uerbi gratia L. Titius ( pro)
P. Meuio agat, ita formula conci-
pitur 8I PARET N. NEGIDIVM P.
MEVIO SESTERTIVM X MILIA DARE
OPORTERE, IVDEX N. NEGIDIVM L.
TITIO SESTERTIVM X MILIA OON-
DEMN4. SI NON PARET, ABSOLVE;
in rem quoque si agat, intendit P.
MEVII REM ESSE EX IVRE QVIRITIVM,
et condemnationem in suam perso-
nam conuertit.
$87. Ab aduersarii quoque parte
si interueniat aliquis cum quo actio
constituitur, intenditur dominum
DARE OPORTERE, condemnatio au-
tem in eius personam conuertitur
qui iudicium accepit; sed cum in
rem agitur, nihil (tn) intentione
facit eius persona cum quo agitur,
Siue suo nomine siue alieno aliquis
iudicio interueniat ; tantum enim
intenditur REM ACTORIS ESSE.
DE ACTIONIBUS.
[1v. $$ 82-87.
to light subsequently when the
parties are before the judge.
§ 85. How guardians and curators
are appointed has been explained in
the first. book.
§ 86. He who sues for another
names the principal in the intentio
and himself in the condemnatio. If,
for example, Lucius Titius sues for
Publius Mevius, the formula runs
thus: ‘If it be proved that Nume-
rius Negidius ought to pay to Pub-
lius Mevius ten thousand sesterces,
do thou, judex, condemn Numertus
Negidius to pay to Lucius Titius
ten thousand sesterces ; if it be not
proved, absolve him. In a real
action the thing is affirmed in the
intentio to be the property of Pub-
lius Mevius by the law of the
Quirites, and the representative is
named in the condemnatio.
$87. Whenthe defendant is repre-
sented by & cognitor or procurator
in a personal action the principal is
nained in the iutentio, and his repre-
sentative in the condemnatio. In
& real action neither the principal
defendant nor his representative is
named in the intentio, which only
affirms the proprietorship of the
plaintiff.
§ 82. If there is a genuine antithesis between suo nomine and
alieno nomine, the procuratorium, tutorium, &c., nomen, which is
the alienum nomen with which the procurator or guardian sues,
must mean the name, not of the procurator or guardian, but of
the principal or ward. When a man sues suo nomine he uses his
own name in the intentio, therefore when a man sues procuratorio
nomine he uses the procuratorium nomen in the intentio. But the
name inserted in the intentio by a procurator is not the name of
the procurator but that of the principal: the name of the pro-
eurator is only inserted in the condemnatio $86. Statute-process
was incapable of representation or procuration (alieno nomine agere)
because it stopped short at pronuntiatio; that is to say, it had no
condemnatio, in which the procurator’s name could be substituted
for that of the principal, Kuntze, $ 243.
1v. §§ 88-102.] DE SATISDATIONIBUS. 533
Justmian enumerates the cases in which representation was
permitted in statute-process: Cum olim in usu fuisset alterius
nomine agere non posse, nisi pro populo, pro libertate, pro
tutela, Inst. 4, 10, pr. Eam popularem actionem dicimus quae
suum jus populo tuetur, Dig. 47, 28, 1. * A publie action is
one which defends the interest of the people) A popularis actio
was one brougbt by & common informer to recover & penalty.
The informer enforced, not a private but a public right, that
is, sued as the procurator of the people; and therefore an infamis,
as he was disabled from being procurator, was incompetent to
prosecute in such an action. To public actions and actions by
an assertor libertatis (see 1 $ 17, comm.) Justinian adds, as main-
tainable by & representative under the old jurisprudence, actions in
behalf of a ward. We havealready mentioned, 1 $6 142—154, comm.,
that until the ward attained the age of seven the guardian acted
in the name of the ward; after the age of seven the ward acted
with the authority of the guardian.
§ 84. A person who without instructions (mandatum) officiously
interposed and undertook the defence of an absent neighbour was
called negotiorum gestor (Inst.8, 27, 1) or defensor, or procurator
voluntarius. The employment of a cognitor, from the necessity
of appointing him in the presence of the adversary and by a certain
formula, was discontinued as inconvenient, and Justinian only speaks
of the procurator. Bethmann-Hollweg, vol. 3, appendix 1, quotes
from Symmachus the report of a case in which the defendant
objected to a procurator (exceptio invalidae procurationis), and the
plaintiff proved his appointment by production of a document from
the praetor's record office (ex actis praetoriis) at a late stage of
judicial proceedings.
-
DE SATIBDATIONIBUS.
$ 88. Videamus nunc quibus ex
causis is cum quo agitur, uel hic qui
agit, cogatur satisdare.
§ 89. Igitur si uerbi gratia in
rem tecum agam, satis mihi dare
debes; aequum enim uisum est
(te) ideo quod interes tibi rem quae
an ad, te pertineat dubium est, possi-
dere conceditur, cum satisdatione
cauere, ut si uictus sis nec rem ipsam
restituas nec litis aestimationem
$ 88. We next inquire under
what circumstances the plaintiff or
defendant is required to give se-
curity.
$ 89. If I sue you in a real
action you must give me security.
As you are permitted during the
suit to retain possession of a thing
to which your title is doubtful, it
is fair that you should give me
security with sureties so that if
judgment goes against you and you
534
sufferas, sit mihi potestas aut tecum
agendi aut cum sponsoribus tuis.
: § 90. Multoque magis debes satis-
dare mihi, si alieno nomine iudi-
cium accipias.
$ 91. Ceterum cum in rem actio
duplex sit, aut enim per formulam
petitoriam agitwr aut per sponsio-
nem, siquidem per formulam peti-
toriam agitur, illa stipulatio locum
habet quae sppellatur IVDICATVM
SOLVI; 8i uero per sponsionem, illa
quae appellatur PRO PRAEDE LITIS
ET VINDICIARVM.
$ 92. Petitoria autem formula
haec est qua actor intendit REM
BVAM ESSE.
$ 93. Per sponsionem uero hoc
modo agimus : prouocamus aduersa-
rium tali sponsione 81 HOMO QVO DE
AGITYR EX IVRE QVIRITIVM MEVS
EST, SESTERTIOS XXV NVMMOS DARE
SPONDES | deinde formulam edimus
qua intendimus sponsionis summam
nobis dari oportere; qua formula
ita demum uincimus, si probaueri-
mus rem nostram esse.
$ 94. Non tamen Áaec summa
sponsionis exigitur. non enim poe-
nalis est, sed praeiudicialis, et prop-
ter hoc solum fit ut per eam de re
iudicetur. unde etiam is cum quo
agitwr,non restipulatur. ideo autem
appellata est PRO PRAEDE LITIS VIN-
DICIARVM stipulatio, quia in locum
praedium successit, qui olim, cum
lege agebatur, pro lite et utndiciis,
id est pro re et fructibus, & posses-
sore petitori dabantur.
$ 95. Ceterum si apud centum-
uiros agitur, summam sponsionis
non per formulam petimus, sed per
DE ACTIONIBUS.
[rv. $$ 88-102.
refuse to restore the thing or to
pay its value I may have the power
of proceeding against you or your
nsors.
§ 90. And there is all the more
reason that you should give security
if you are only the representative of
another.
§ 91. A real action is either
commenced by a real formula or by
sponsio: if by real formula, sti-
pulation is called security for satis-
faction of judgment; if by sponsio,
security in leu of warranty for
property and interim possession.
§ 92. The Intentio of a real
formula asserts the proprietorship
of the plaintiff.
$ 93. In a sponsio we challenge
the defendant to a wager as follows :
* If the slave in question belongs to
me by the law of the Quirites, do
you promise to pay me twenty-five
Besterces ?' and we then deliver a
formula in which we sue for the
sum named in the wager, &nd obtain
judgment if we prove our proprietor-
ship.
§ 94. But the sum named in the
wager is not exacted, for it 1s not
penal, but prejudicial, and the
wager is merely a device for insti-
tuting a trial of ownership. Ac-
cordingly, the defendant does not
exact a counter promise from the
plaintiff. The name of security in
lieu of warranty for property and
interim possession is derived from
the warrantors which it superseded ;
for in the days of statute-process
restitution of the thing in dis-
pute and the mesne profits was
Secured to the plaintiff by the en-
gagement of the defendant's war-
rantors.
$ 95. In the centumviral court
the sum of the wager is not sued for
by formula but by statute-process.
1v. $$ 88-102.]
legis actionem; sacramento enim
reum prouocamus; eaque sponsio
sestertium CXXY nummum fit ectlicet
propter legem Crepereiam.
$ 96. Ipse autem qui in rem agit,
si suo nomine agat, satis non dat.
$ 97. Ac nec si per cognitorem
quidem agatur, ulla satisdatio uel
ab ipeo uel & domino desideratur.
cum enim certis et quasi sollemni-
bus uerbis in locum domini substi-
tuatur cognitor, merito domini loco
habetur.
$ 98. Procurator uero si agat,
satisdare iubetur ratam rem domi-
num habiturum; periculum enim
est, ne iterum dominus de eadem re
experiatur, quod periculum (non)
interuenit, si per cognitorem actum
fuerit, quia de qua re quisque per
cognitorem egerit, de ea non magis
amplius actionem habet quam si
ipse egerit.
$ 99. Tutores et curatores eo
modo quo et procuratores satisdare
debere uerba edicti faciunt; sed
aliquando illis satisdatio remittitur.
$ 100. Haec ita, si in rem
agatur; si uero in personam, ab
actoris quidem parte quando satis-
dari debeat quaerentes, eadem repe-
temus quae diximus in actione qua
in rem agitur.
$ 101. Ab eius uero parte cum
quo agitur, siquidem alieno nomine
aliquis interueniat, omni modo satis-
dari debet, quia nemo alienae rei
sine satisdatione defensor idoneus
intellegitur. sed siquidem cum
cognitore agatur, dominus satisdare
iubetur; si uero cum procuratore,
ipse procurator. idem et de tutore
et de curatore iuris est.
$ 102. Quodsi proprio nomine
aliquis iudicium accipiat in per-
sonam, certis ex causis satisdare
folet quas ipse praetor significat.
quarum satisdationum duplex causa
est: nam aut propter genus actionis
DE SATISDATIONIBUS.
535
We challenge the defendant to
deposit a stake of a hundred and
twenty-five sesterces, the amount
fixed by the lex Crepereia.
§ 96. In a real action a plaintiff
who sues in his own name gives no
security.
§ 97. And if a cognitor sues, no
security is required either from him
or from his principal, for the cog-
nitor, being appointed by certain
sacramental terms, is identified with
the principal.
§ 98. But if a procurator sues, he
is required to give security for the
ratification of his proceedings by his
principal, as otherwise the principal
might sue again on the same claim,
which he cannot do after suing by a
cognitor.
$ 99. Guardians and curators are
required by the edict to give the
same security as procurators, but
are sometimes excused.
§ 100. So much for real actions.
In personal actions the plaintiff is
governed by the same rules as in
real actions.
§ 101. If the defendant is repre-
sented by another person, security
must always be given, for no one is
allowed to defend another without
security: but in a suit against a
cognitor it is the principal who
gives security : in a suit against a
procurator the procurator gives
security; and the same applies to
guardians and curators.
§ 102. If the defendant is sued in
his own name, in a personal action,
he only gives security in certain
cases named in the edict. These
cases are of two kinds, depending
either on the nature of the ac-
536
satisdatur, aut propter personam,
quia suspecta sit; propter genus
actionis, ueluti iudicati depensiue
aut cum de moribus mulieris agi-
tur; propter personam, ueluti si
cum eo agitur qui decoxerit, cuius-
ue bona (a) creditoribus possessa
proscriptaue sunt, siue cum eo
herede agatur quem praetor sus-
pectum aestimauerit.
DE ACTIONIBUS.
[xv. $§ 88-102.
tion or on the character of the de-
fendant. The nature of the action
is the reason in a suit against a
judgment debtor, or a principal in-
debted to his surety, or a husband
who retains a portion of the dower
of his divorced wife on the plea of
immorality. The character of the
defendant is the reason if he has
been insolvent, or if his goods have
been possessed or proscribed for sale
by his creditors, or if he is a successor
whom the praetor pronounces to be
open to suspicion.
§ 88. In areal action the defendant was required to give security ;
in a personal, with a few exceptions, if he appeared in his own cause,
he was not required. Justinian relieved him of the necessity in
real actions.
In the time of Gaius if the defendant in a real action refused to
give security, judicatum solvi, the possession was transferred from
him to the plaintiff by the interdict Quem fundum, Quam here-
ditatem, or Quem usumfructum, as the case might be, and he was
reduced to the position of plaintiff, Fragment of Ulpian’s Insti-
tutions of Civil Law. ‘Some interdicts may either initiate or
restore possession, as the interdicts Quem fundum and Quam here-
ditatem. For if I sue a person for land or an heritage, and he
refuses to give security, he is compelled to transfer the possession
to me whether I never before had possession, or once had and after-
wards lost possession, Ulpian, Fragmenta Vaticana, 92. ‘The
plaintiff has a right to security in a real action for a servitude as
well as for a corporal thing, and therefore, analogous to the inter-
dict, Quem fundum, there is an interdict, Quem usumfructam, for
the transfer of a usufruct, Paulus, Receptae Sententiae, 1, 11, 1.
‘In a demand of a heritage, security must be given, or else pos-
session is transferred to the demandant. If the demandant refuse
to give security, possession remains with the tenant, for in equal
circumstances law favours the possessor.’
The same rule applied to Praedial servitudes. If A asserted
against B the Urban, servitude altius Non tollendi (si ageretur, jus
vieino non esse, aedes altius tollere), i.e. sought by actio Confessoria
of jus altius Non tollendi (with an intentio, perhaps, in the following
form; Si paret jus Numerio Negidio non esse aedes altius tollendi
Iv. $$ 88-102.] DE SATISDATIONIBUS. 537
invito Aulo Agerio) to restrain B from exercising the indefinite
powers of ownership by raising the height of his house, B might
decline to defend the action and thus avoid a judicial decision as
to the existence of the servitude: but as & penalty for this he
was not allowed afterwards to exercise his alleged right without
first proving before a tribunal the nullity of A's claim: proving,
that is, either that A never had such a servitude over the house of
B, or that B had extinguished it by acquisition of the counter-
servitude (libertatis usucapio). That is to say, being originally
in possession, or rather quasi-possession of his right (for servitudes
are subjects of quasi-possession) B was put out of possession;
and, if he afterwards wished to exercise his right of building, had
first to recover possession of it as plaintiff in a suit: Le. by actio
Negatoria of jus Non altius tollendi, if he denied that A as do-
minans ever enjoyed such a servitude, or by aetio Confessoria of
jus altius tollendi if he claimed as serviens to have reacquired the
freedom of his house by usucapio libertatis (in either case, perhaps,
with an intentio in the following form: Si paret jus Aulo Agerio
esse aedes altius tollendi invito Numerio Negidio), $ 8.
The penalty would only consist in an inversion of the order of
proof: B as plaintiff would have to prove his own proprietorship
before À as defendant was put to prove the existence of the servi-
tude: whereas, if À had been plaintiff, A would have had to begin
by proving the existence of the servitude before B was put to his
answer.
So vice versa: if B had originally wished to prove his right to
build as plaintiff, either in an aetio Negatoria of jus Non altius
tollendi, or in an actio Confessoria of jus altius tollendi; and if
A had declined to defend either action by giving securities, &c. in
the course prescribed by law; A would have been restrained from
afterwards interfering with B except as plaintiff in a suit in which
B was made defendant, Dig. 39, 1,15. Cf. 2, §§ 1-14, $$ 28-89,
comm., §§ 1-9, comm.
At a later period the cautio judicatum solvi was not required
from the defendant in a real action, and translatio possessionis might
be averted if the defendant merely gave the cautio judicio sisti.
The sum staked in the praedes sacramenti, which Gaius bad
told us, § 14, was a thousand or five hundred asses, he now, § 95,
defines as one hundred and twenty-five sesterces.
The explanation of this is as follows: Originally the sestertius,
538 DE ACTIONIBUS. [rv. $$ 88-102.
as the name implies, was two asses and a half, and the denarius
ten asses. Both the sestertius and the denarius were silver coins.
In the second Punie War, about B.c. 217, in consequence of the
insolveney of the State, the denarius was made equal to sixteen
asses and the sestertius remained, as before, one fourth of the
denarius, that is, became equal to four asses. One hundred and
twenty-five sesterces, therefore, were equal to five hundred asses.
This change was brought about by the lex Crepereia.
The Sponsio praejudicialis, though a personal action in form,
might be in effect & real action. It resembled the Feigned Issue
or issue in & fictitious action on & wager, whereby the Court of
Chancery, before it had the power of summoning a jury might
refer an issue of fact to trial by jury, or the parties in a court
of law by consent or by direction of some act of parliament might
determine some disputed right without the formality of a regular
action, thereby saving much time and expense, Stephen’s Com-
mentaries, 5,14. In the Sponsio poenalis there was both a sponsio
and restipulatio, that is, both parties forfeited the penal sum if they
lost the action, and the penal sum was serious, in an action de
pecunia certa credita being one third and in an action de pecunia
constituta being one half of the sum in dispute, § 171.
In the Sacramentum and Sponsio two different stipulations
must be distinguished, In the Sacramentum there was (A) the
praedes sacramenti, and (B) the praedes litis et vindiciarum; in
the Sponsio there was (A) the sponsio praejudicialis, and (B) the
satisdatio pro praede litis et vindiciarum. In the formula petitoria
there was only one stipulation, (B) the satisdatio judicatum solvi,
corresponding to the second stipulation in the Sacramentum and
S ponsio.
In & judicium Cascellianum for recovering possession, $ 166, and
fructus, § 167, or a Sponsio based on the interdicts Uti possidetis
and Utrubi fuit, both parties being originally both plaintiff and
defendant, there were (A) two sponsiones and two restipulationes for
a penal sum ; there was no security (B) corresponding to the security
Pro praede litis et vindieiarum ; but (C) a fructuaria Stipulatio,
$ 166, for a penal sum equal to the value of the. mesne profite; or,
as an alternative, a Satisdatio judicatum solvi, $ 169, contemplating
an action (judicium fructuarium) based on the Licitatio or auction
of the fruits.
$ 101. As a plaintiff's procurator could not bring to trial and
rv. §§ 88-102.] DE SATISDATIONIBUS. 539
consume the plaintiff's right, he had to give cautio rem ratam
dominum habiturum: and as a defendant's procurator could not
bring to trial the defendant's obligation, he had to give security
judicatum solvi.
$ 102. The husband sued for the dower of his divorced wife might
retain a portion on various grounds, of which Immorality was one,
Ulpian, Liber Regularum, 6, 9. ‘Retentions in the restitution of
dower are on aecount of children, immorality, expenditure, donation,
articles purloined by the wife. On account of children, if the fault
of the wife, or the father in whose power she is, occasioned the
divorce. "Then a sixth is retained on account of each child, but not
more than three sixths altogether. For gross immorality a sixth is
retained, for slight immorality an eighth. Only adultery is gross
immorality.’ (Cf. § 44, comm.)
Besides the forfeiture of a vadimonium, fraudulent absconding
to avoid the summons to appear was an act of bankruptcy, or
motive for missio in possessionem. Praetor ait: Qui fraudationis
eausa latitabit, si boni viri arbitratu non defendetur, ejus bona pos-
sideri vendique jubebo, Dig. 42, 4, 7, 1. ‘If a debtor fraudulently
abscond, and no sufficient representative defends him, I will order
his goods to be possessed and sold."
A heres might, on cause shown to the praetor, immediately after
his entry on the succession, be required by the creditors to give
security for the payment of their claims, with the alternative of
seizure and sale, on the mere ground of poverty, § 102. But after
a lapse of time it was necessary to prove not only poverty, but
fraudulent behaviour on the part of the heres, Dig. 42, 5, 81.
The stipulation judicatum solvi.contained three clauses: Judi-
catum solvi stipulatio tres clausulas in unum collatas habet: de re
judicata, de re defendenda, de dolo malo, Dig. 46, 7, 6. ‘The
stipulation judicatum solvi is composed of three clauses, for satis-
faction of the judgment, for defending the action, and against
malicious deterioration in case of restitution.) The action must
be defended ‘to the satisfaction of a reasonable man,’ which was
interpreted to mean that, if a defensor appeared before the judex,
the second clause was not satisfied unless the defensor was prepared
to give further security judicatum solvi, Dig. 46,7, 5, 1$ 83. ‘A
defensor may prevent a forfeiture of the stipulation if he defends
* to the satisfaction of an arbitrator," that is, with adequate
security.’
540 DE ACTIONIBUS. [1v. $$ 88-102.
Justinian relieved the defendant in any action who appeared in
his own person from the first and third clauses of the security
judicatum solvi, but not from the second. The vadimonium or
eautio judicio sistendi, which originally, it seems, only referred to
adjourned appearances in jure, was at this period extended to the
judicis, and bound the defendant to appear before the judex and
remain to the end of the trial. If, then, in consequence of an
adjournment in jure, there had been a vadimonium between the
parties, no further stipulation would be necessary; otherwise the
defendant would have had to enter into the undertaking that
formed the second clause of the stipulation judicatum solvi, Inst.
4,11,2. ‘This is not the present rule. The defendant now is
not required either in a real or personal action, if he appear in
person, to give security for satisfaction of the judgment, but only
for his own personal presence and continuance in court to the end
of the trial.’
The procurator of the plaintiff appointed before the judex or in
the record office of the magistrate by memorandum (insinuatio)
in the register of his public proceedings (apud acta) was assimilated
to the cognitor whom he superseded, and was not required to give
security; otherwise he had to give security ratam rem dominum
habiturum, because Litis Contestatio by him operated no con-
sumption.
The procurator of the defendant gave no security ; but his prin-
eipal, as fidejussor of his procurator, gave security for the pro-
curator judicatum solvi, including a mortgage (hypotheca) of all
his property. A defensor (unauthorized representative) of the
defendant gave security judicatum solvi, because Litis Contestatio
by him operated consumption.
DE IUDICIIS LEGITIMIS ET QUAE IMPERIO CONTINENTUR.
$ 103. Omnis autem iudicia aut
legitimo iure consistunt aut imperio
continentur.
$104. Legitima sunt iudicia | quae
in urbe Roma uel intra primum
urbis Romae miliarium inter omnes
ciues Romanos sub uno iudice acci-
piuntur; eaque (e) lege Iulia iudi-
ciarta, nisi in anno et sex mensibus
judicata fuerint, expirant. et hoc
$ 103. Actions are either statut-
able or supported by
power.
Ot 104. Statutable actions are
those that are instituted at Rome,
or within an area limited by the
first milestone, between Roman
citizens, before a single judex ; and
these by the lex Julia judiciaria
expire in a year and six months
rv. §§ 103-109.]
est quod uulgo dicitur e lege Iulia
litem anno et sex mensibus mort.
$ 105. Imperio uero continentur
recuperatoria et quae sub uno iudice
accipiuntur interueniente peregrini
persona iudicis aut litigatoris. in
eadem causa sunt, quaecumque extra
primum urbis Romae miliarium tam
inter ciues Romanos quam inter
peregrinos accipiuntur. ideo autem
imperio contineri iudicia dicuntur,
quia tamdiu ualent, quamdiu is qui
ea praecepit, imperium habebit.
$ 106. Et siquidem imperio con-
tinenti iudicio actum fuerit, siue
in rem siue in personam, siue ea
formula quae in factum concepta
est, siue ea quae in ius habet inten-
tionem, postea nihilo minus ipso
iure de eadem re agi potest; et
ideo necessaria est exceptio rei iudi-
catae uel in iudicium deductae.
$107. Si uero legitimo iudicio
in personam actum eit ea formula
quae iuris ciuilis habet intentionem,
postea ipso iure de eadem re agi
non potest, et ob id exceptio super-
uacua est; si uero uel in rem uel
in factum actum fuerit, ipso iure
nihilo minus postea agi potest, et
ob id exceptio necessaria est rei
iudicatae uel in iudicium deductae.
$ 108. Alia causa fuit olim legis
actionum: nam qua de re actum
semel erat, de ea postea ipso iure
agi non poterat; nec omnino ita,
ut nunc, usus erat illis temporibus
exceptionum.
§ 109. Ceterum potest ex lege
quidem esse iudicium, sed legiti-
IMPERIUM.
541
from their commencement, unless
previously decided; which is the
meaning of the saying that by the
lex Julia an action dies in eighteen
months.
$ 105. Magisterial power sup-
ports those actions that are insti-
tuted before recuperators, or before
a single judex, if the judex or a
party is an alien, or beyond the
first milestone, whether the parties
are citizens or aliens. They are
said to be upheld by magisterial
power because they can only be
prosecuted as long as the praetor
who delivered the formula continues
in office.
$ 106. The institution of an ac-
tion binding by magisterial power,
whether it was real or personal,
&nd whether it had a formula of
fact or an allegation of law, is not
an extinctive bar (§ 115) to the in-
stitution of a subsequent action on
the same question: which must be
repelled by a counteractive plea
alleging the previous decision or
litigation.
$ 107. But the institution of a
statutable personal action with an
Intentio of civil law, is an extinctive
bar to a subsequent action on the
same question, and a counteractive
plea is not required. The insti-
tution of a statutable real action
or a statutable personal action with
& formula of fact, is no extinctive
bar to a subsequent action on the
same question, and the counteractive
plea of previous decision or liti-
gation is necessary.
§ 108. It was otherwise anciently
with the forms of statute-process,
when a subsequent action on the
same question was always ex-
tinctively barred, and counteractive
pleas were unknown to the code of
procedure.
$109. An action may be founded
on statute and yet not be statutable,
542
mum non esse; et contra ex lege
non esse, sed legitimum esse. nam
si uerbi gratia ex lege Aquilia uel
Ollinia uel Furia in prouinciis aga-
tur, imperio continebitur iudicium ;
idemque iuris est et si Romae apud
recuperatores agamus, uel apud
unum iudicem interueniente pere-
grini persona ; et ex diuerso si ex
ea causa ex qua nobis edicto prae-
toris datur actio, Romae sub uno
iudice inter omnes ciues Romanos
accipiatur iudicium, legitimum est.
DE ACTIONIBUS.
[1v. $$ 103-109.
or statutable and yet not founded
on statute. For instance, an action
founded on the lex Aquilia, or
Ollinia, or Furia, if instituted in
the provinces, determines with the
praetorship, and so it does if insti-
tuted at Rome before recuperators,
or though iustituted before & single
judex, if the judex or a party is an
alien; and, on the contrary, an
action founded on the edict, if in-
stituted at Rome, before a single
judex, between Roman citizens, is
statutable.
Imperium and Jurisdictio were the two component parts of
Officium jus dicentis, Le. the power of the magistrate (consul,
praetor, curule edile) charged with the administration of civil
justice.
Of these two elements, Jurisdictio denoted the power (perhaps
originally vested in the Pontifex) of administering the civil law in
the ordinary course of procedure. It consisted chiefly in presiding
over the preliminary stages of litigation, and in the period of
legis actiones was summed up in the utterance of the solemn
words, Do, Dico, Addico; but in the formulary period it was
performed, not by oral utterances, but by the delivery of written
documents (verbis conceptis). In genuine litigation it was called
jurisdictio contentiosa; in fictitious litigation, e.g. manumission
by vindicta, alienation by in jure cessio, it was called jurisdictio
voluntaria.
Imperium as coupled with the administration of civil justice
(imperium quod jurisdictioni cohaeret, Dig. 1, 21, 1), or as includ-
ing it (cui etiam jurisdictio inest, Dig. 2, 1, 8), was called im-
perium mixtum, as opposed to imperium merum, or gladii potestas,
the administration of eriminal justice. Imperium mixtum may be
divided into two functions, (1) cognitio extraordinaria and (2)
actiones honorariae.
(1) Magistrates invested with imperium had the power of issuing
commands (jus decernendi) to which they enforced obedience by
fine (mulcta), distress (pignus), and imprisonment, and, as a pre-
liminary to issuing à command (decretum), of summoning parties
before them (vocatio), by means of a lictor, and conducting in
person an investigation of facts (causae cognitio). To these
1v. $$ 103-109.] IMPERIUM. 643
functions of the praetor must be referred Restitutio in integrum,
Missio in possessionem, and other proceedings which the praetor
decided in person without reference to a judex, a form of procedure
which finally superseded the ordo judiciorum or formulary system.
(2) But even of suits belonging to the ordo judiciorum, which
conformed, that is, to the principle of appointing a judex, a portion
must be referred to the praetor's imperium. All the new actions,
unknown to the civil law, which the praetor invented in virtue of
the powers conferred by the law of uncertain date that introduced
the formulary system, the lex Aebutia; all fictitious actions and
actions in factum ; in a word, all actiones honorariae, were emana- .
tions of the praetorian imperium,
Jurisdictio is sometimes used in a wider sense as equivalent to
officium jus dicentis: and then Lex and Jurisdictio form an anti-
thesis similar to that which is formed by Jurisdictio in the narrower
sense and Imperium: the antithesis, namely, of Legislator and
Administrator.
This antithesis is the principle of many of the divisions or classi-
fications in Roman jurisprudence and is expressed in various terms.
We have jus legitimum opposed to jus praetorium, § 34: jus
legitimum opposed to praetoris jurisdictio, § 111: jus civile
opposed to jus praetorium or jus honorarium, Dig. 1, 1, 7: actio
legitima opposed to actio honoraria, Dig. 35, 2, 82, pr. and Collatio,
2, 5, 5: actio legitima opposed to actio utilis, Dig. 39, 8, 22, 2:
aetio civilis opposed to aetio honoraria (omnes actiones aut civiles
dicuntur aut honorariae) Dig. 44, 7, 25, 2, and Dig. 50, 16, 178, 3:
actiones quae ipso jure competunt opposed to actiones quae a
praetore dantur, $112: actiones quae ex legitimis et civilibus
eausis descendunt opposed to actiones quas praetor ex sua juris-
dictione comparatas habet, Inst. 4, 6, 8: actio civilis and obligatio
civilis opposed to actio in faetum a praetore danda, Dig. 2, 14, 7,2 :
actio civilis opposed to interdictum, Dig. 48, 26, 14: and lex
opposed to praetor (actionum modus vel lege vel per praetorem
introductus), Dig. 50, 17, 27.
Although the division into judicia legitima and judicia imperio
continentia does not exactly coincide with the division into actiones
legitimae and actiones honorariae (e.g. an actio in factum if
litigated at Rome before a Roman judex by two Romans would
be judicium legitimum, and, vice versa, an actio civilis if litigated
before recuperators or in the provinces or between aliens would be
544 DE. ACTIONIBUS. [rv. $$ 103-109.
judicium imperio continens, § 109); yet it is essentially the same,
being based on the same antithesis of the Legislator and the
Executive.
§§ 104, 105. Statutory actions (judicia legitima), so named from
the lex Julia judiciaria, the statute by which they were defined,
had by that statute a pendency of eighteen months. After that
period they could neither be prosecuted nor renewed, as the right
of action was eonsumed by res in judicium deducta. If the delay
was caused by the defendant the plaintiff had & remedy by an
action De dolo, Dig. 4, 8, 18, 4. Actions binding (continentia) by
magisterial power had a still shorter pendency, the commission of
the judex only continuing in force so long as the praetor who
appointed him, and who himself was only appointed for a year,
continued in office.
It is difficult to reconcile this account of the prescription or limit-
ation of legal process with what we read of the duration of some
controversies. Martial speaks of a cause that had been litigated in
the three Fora, the Forum Romanum, the Forum Julium, and the
Forum Augustum, for twenty years:
Lis te bis decimae numerantem frigora brumae
Conterit una tribus, Gargiliane, foris.
Ah miser et demens! viginti litigat annis
Quisquam cui vinci, Gargiliane, licet? 7, 65.
Bethmann-Hollweg, $ 80, suggests that the limitation did not
apply to Centumviral suits nor to Cognitio extraordinaria; and
that any litigation might be protracted by a series of appeals.
This limit to the duration of legal proceedings, though it has
left some traces in the Digest, was obsolete long before Justinian.
Theodosius limited the pendency of actions to thirty years, Cod.
"Theod. 4, 14, 1: i.e. he ordained that as the right of action expired
unless Litis contestatio took place within thirty years from the
nativity of an action; so, after Litis contestatio, an interval of
thirty years after any act of the Judge or one of the parties should
be a bar to any further prosecution of the action. Justinian limited
the duration of civil suits to three years from Litis contestatio
and sanctioned the law by contumacial proceedings (eremodicium)
against the contumacious plaintiff or defendant, C. 3, 1, 18. If
both parties agreed to let the litigation lie dormant, he limited the
dormancy or pendency to forty years. Bethmann-Hollweg, § 147.
rv. §§ 103-109.] RES IUDICATA. 845
The expiration of the commission of the judex by the expiration
of the functions of the praetor who appointed him suggests a
reference to 1 Geo. 8, c. 28; by which act judges are continued in
their offices notwithstanding any demise of the crown, which was
formerly held to vacate their seats.
The division of actions into those with a pendency of eighteen
months (judicia legitima) and those which expire with the praetor-
ship (judicia imperio continentia) is not coincident with the division
into those which are ipso jure extinctive of future litigation and
those which are merely counteractive ope exceptionis, § 106, For
although all judicia imperio continentia, whether in jus or in
factum, are merely counteractive; some judicia legitima, i.e. real
actions and actiones honorariae, are not ipso jure extinctive, $ 107.
Gaius, therefore, was guilty of an inaccuracy when, 8 §§ 180, 181,
he identified the two divisions.
The reason why real actions and actions in factum had not the
same power of Novation as personal actions in jus was probably, as
Heffter has suggested, as follows: Under the legis actiones, $ 108,
the same question could not be the subject of a second trial. The
lex Aebutia, which abolished the two legis actiones, denominated
condictio and judicis postulatio, and established in their stead the
judicia and arbitria of the formulary system, probably enacted that
these should have the same power of novation, 3 § 180, as the
actions which they superseded, provided they were instituted be-
tween Roman citizens before a single judex, and within an area
bounded by the first milestone. Proceedings, therefore, thus de-
fined, when once instituted, extinguished the plaintiffs right of
action. The provision of the lex Aebutia, however, was not inter-
preted as applicable to actions in faetum; for actions in factum
were used precisely in those cases where no right was recognized
by the civil law, that is, where no right was enforceable by
statute-process. Nor was it applied to Real actions, for these
were left by the lex Aebutia to be decided by the sacramentum,
and though they were finally absorbed by the formulary system,
no law, apparently, ever enacted that in these cases the formu-
lary procedure should have the same effect as the legis actio,
and extinguish ipso jure the plaintiff's right of action. In Real
actions and actions in factum, therefore, even though in other
respects they were legitima, that is, fell under the definition of
the lex Aebutia, the defendant required the protection of the
Nn
546 DE ACTIONIBUS. [rv. $$ 103-109.
exceptio rei judicatae. The result is, that some actions which were
statutable so far as pendency was concerned, masmuch as they
fell under the statute called lex Julia, were not statutable so far
as novation was concerned, inasmuch as they fell outside the statute
called lex Aebutia.
$ 109. The nature of the lex Ollinia is not known.
The same imperium mixtum whence emanated new actions in
favour of the plaintiff also issued exceptions in favour of the de-
fendant, and in particular the exceptio rei judicatae, which supple-
mented the novation or consumption whereby a nght of action was
extinguished or annihilated (ipso jure, § 106). The aim of the
legislator in barring once-used rights of action by consumption
(novatio) or exceptio rei judicatae, was to protect a defendant from
being harassed by successive suits, and to guard against the public
evil which would arise in the shape of a general unsettlement and
uncertainty of rights if judicial decisions were not conclusive,
Dig. 44, 2, 6, ‘That one right of action should only be tried
once is a reasonable rule to prevent interminable litigation and the
embarrassment of contrary decisions. Accordingly, it was adopted
as & maxim that (in the absence of appeal or after appeal) judicial
decisions should be assumed to be true. Res judicata pro veritate
accipitur, Dig. 1, 5, 25. The principle may be stated more at
length as follows: A judgment shall not be contradicted by a
judgment in a subsequent trial between the same parties where the
same right is in question (except, of course, by the judgment of
a court of appeal). ^ Exceptio rei judicatae obstat quotiens inter
easdem personas eadem quaestio revocatur vel alio genere judicii,
Dig. 44, 2, 7, 4. *'The plea of previous judgment is a bar when-
ever the same question of right is renewed between the same parties
by whatever form of action.’ Let us consider more minutely the
import of this rule,
The parties must be the same. Res inter alios judicatae nul-
lum alüs praejudicium faciunt, Dig. 44, 2, 1. ‘A judgment
between certain parties does not determine the rights of other
parties,’
This is subject to certain exceptions. For instance, a judgment
is conclusive not only against the parties but also against their
successors, whether universal or particular, Cod. 8, 36, 2. A judgment
in a suit litigated by the father respecting the status (legitimacy)
of a child is conclusive on all the world. A mortgagee, purchaser,
rv. §§ 103-109.] EXCEPTIO REI IUDICATAE. 547
husband, are bound by the judgment in a suit litigated by the
mortgagor, vendor, donor of dower, Dig. 42, 1, 68. A suit between.
a testamentary heir and the heir by intestacy binds the legatees
and the manumissi who accordingly are entitled to be made parties
and to appeal. In these cases the judex is said to establish jus,
i.e. jus inter omnes, not merely jus inter partes: Placet enim ejus
rei judicem jus facere, Dig. 25, 8, 8, pr.: Jus facit haec pro-
nuntiatio, Dig. 80, 1, 50, 1.
The form of action is immaterial provided that the same right is
contested. Thus a depositor, lender, pledgor, may recover damages
for injury to the thing deposited, lent, or pledged, either by action
on his contract or under the lex- Aquilia, but if east in one, he
cannot bring the other.
It is otherwise if the mght contested is really different if in one
action a plaintiff claims a jus in rem, in the other a jus in personam.
Paulus respondit, ei qui in rem egisset nec tenuisset, postea con-
dicenti non obstare exceptionem rei judicatae, Dig. 44, 8, 81. ‘If
a plaintiff after losing a real action brings a personal action, he is
not barred by the plea of previous judgment.’
The term ‘the same right’ must be taken to include a nght and
its correlative obligation ; in other words, it is immaterial that the
position of plaintiff and defendant is inverted. Si quis rem a non
domino emerit, mox petente domino absolutus sit, deinde posses-
sionem amiserit, et a domino petierit, adversus exceptionem: Si
non ejus sit res, replicatione hae adjuvabitur: At si res judicata
non sit, Dig. 44, 2,24. ‘A purchaser of a thing from a non-pro-
prietor, sued for it by the true proprietor and acquitted, afterwards
losing possession thereof, and seeking (by actio Publiciana, 2 § 48)
to recover it from the former proprietor, may meet the exception
by which he pleads true dominion by the replication of previous
judgment. This example further shows that the plea, though
invented chiefly to protect defendants, is sometimes available for
plaintiffs.
When the same right is in question it is immaterial that the
subject or secondary object (2 $ 1, comm.) of the right is dif-
ferent. Thus, a plaintiff claiming to be heir, who fails when he
brings hereditatis petitio for Blackacre, cannot afterwards bring
hereditatis petitio for Whiteacre as a part of the same inheritance.
Of course, if there is no question of hereditas, the difference of
Subject involves a different right of Ownership; and the Vindicatio
Nn2
548 DE ACTIONIBUS. [rv. $$ 103-109.
by which a man claims Blackacre is not barred by a previous Vin-
dicatio in which he claimed W hiteacre.
Perhaps the same right may be in question even when the
primary object, the benefit which the night immediately contem-
plates, is different. Thus, a plaintiff who fails in a condictio furtiva
brought to recover stolen property, cannot afterwards maintain an
actio furti to recover a penalty for theft. We might say that the
plaintiff has a single compound right, to recover his property and
to recover a penalty, but perhaps it is more accurate to say that
he has two separate rights which, however, stand or fall together
by necessary implication, and to bring this case under the following
head. The identity of the right contested is more expressly re-
quired in the legal maxim, De eadem re ne bis sit actio, which
(8 $ 180, comm.) grounded the exceptio rei in judicium deductae,
founded on the novation of the plaintiff's original right by Litis
eontestatio. The maxim, Res judicata pro veritate accipitur,
grounds the exceptio rei judicatae, which rests on the novation of
Litis contestatio by Condemnatio or Absolutio, 8 $ 180. The two
exceptions were substantially the same, and were pleaded in the
formula by the same terms: Si ea res judicata non sit. The maxim,
Res judicata pro veritate accipitur, is the more comprehensive as
extending beyond the right to the facts constituting the title and
their logical consequences. Bethmann-Hollweg, § 111.
It is immaterial, namely, whether a proposition was decided as
the final question, or as an essential element and immediate ground
of the final decision (ratio decidendi). Every judgment is a decision
not only on the ultimate issue, but by implication on all the ante-
cedent pleas, not only the exception, replication, duplication (for
these are exclusively counteractive, not extinctive, pleas, § 115), but
also on all facts, e. g. solutio, acceptilatio, novatio, which would be
put in issue in English pleading, as necessary to legitimate the
final decision, even if, as forming extinctive pleas, they would not
be expressed in a Roman formula. Thus, a plaintiff who fails when
he sues by real action for a particular thing, or by a personal action
for a debt, basing his claim on the presupposition of his succession
to a person deceased, cannot afterwards claim the whole succession
by hereditatis petitio. Hence we often meet with praescriptio
praejudicialis, e. gp. Ea res agatur si in ea re praejudicium hereditati
non fiat, § 1838, or exceptio praejudicialis, e.g. extra quam si in reum
capitis praejudicium fiat, Cie. de Inventione, 2, 20; i.e. dilatory
rv. §§ 103-109.] EXCEPTIO REI IUDICATAE, 549
pleas whereby a party seeks to postpone a less important issue
(causa minor) until a more important issue (causa major) with which
it is indissolubly connected, shall have been decided. This prae-
scriptio implies that if the more important issue were decided on
possibly inadequate examination, as incidental or ancillary to the
decision of the minor issue, the re-trial of the more important issue
would be barred by the exceptio rei judicatae.
Observe that the rule is, a judgment shall not be contradicted
by a judgment in another action when the same right is in ques-
tion, not, when the same title is in question. The latter expression
would be sufficient to meet the case of personal actions. Here
every different obligation is ground to support a different action,
and every different title engenders a different obligation. Thus a
plaintiff who fails in an action on tort alleging Dolus is not pre-
cluded from a subsequent action on tort alleging Culpa, Dig. 40,
12, 18. But the rule so stated would not adequately meet the
case of real actions. Here it is immaterial that the plaintiff alleges
a different title. There can be many obligations between the same
parties in respect of the same subject; but the same subject only
admits of one true dominion, and consequently of only one true
title to dominion. Hence the plaintiff in a real action was re-
quired to adduce all his fancied titles on pain of being barred by
the exception of res judicata, and if, for instance, he claims owner-
ship on the ground of tradition he cannot afterwards claim by
another title, e. g. usucapion, § 181. A man who fails in a claim
as testamentary heir may, however, afterwards claim as heir by de-
scent, Dig. 5, 8, 8: he has as many actions (hereditatis petitio) as he
has delations: in fact the legacies and the arbitrary division of the
succession between the co-heirs make a testamentary inheritance
quite a different right (alia res) from an intestate inheritance. (So
Ihering, § 51. But this doctrine seems irreconcilable with Dig.
44, 2, 30, pr. which is quoted by Savigny, § 300, as establishing
that a man who fails when he claims as testamentary heir cannot
afterwards claim as heir by descent.) The rule, of course, does not
apply to a title not in existence at the tume of the former action
(causa superveniens), and it is defeated if the plaintiff takes the
precaution expressly to limit the former action (probably by means
of a praescriptio) to the investigation of a specific title, a limitation
called causae adjectio. If he was allowed by the praetor to do this
and failed in his suit, he could afterwards claim dominion by a
§50 : DE ACTIONIBUS. [1v. §§ 103-109.
different title. Siquis petat fundum suum esse, eo quod Titius eum
sibi tradiderit; si postea eum alia ex causa petat, causa adjecta, non
debet summoveri exceptione, Dig. 44, 2, 11, 2. ‘A plaintiff who
loses an action in which he claimed property in land on the ground
of delivery of possession, is not barred by exception from brmging
another real action, expressly limited, like the former, to a specific
title,’
Extinctive (1pso jure) consumption of a right of action vanished
with the formulary system, and in Justinian’s time the averment of
Res judicata is only found under the form of Exceptio or a Counter-
active plea. Indeed, when the judex of the republican period
ceased fo be commissioned to hear and determine causes, one of
the conditiens of Extinctive litis consumptio (unus judex, § 107),
was always of necessity wanting.
But this was not the only change: the consumption of a right
of action by the operation of Res in judicium deducta, whether as
an extinctive (ipso jure) or a counteractive plea (ope exceptionis) ;
in other words, necessary Novation operated by Litis contestatio,
was also abrogated and is not to be found in the statute-book of
Justinian. Even the operation of Res judicata, so far as it was
governed by the same rules as Res in judicram deducta and merely
indicated by its name a later stage of the proceedings (sententia
lata) may also be said to have been abolished. The rules, that is
to say, which governed the transformed Exceptio rei judicatae, as
it prevailed in the time of Justinian, were much more rational and
flexible than the hard and fast doctrine of Necessary novation
whether by Litis contestatio or by Sententia lata which prevailed
in the time of Statute-process, § 108, and apparently survived to
the days of Gaius. As the grounds of the judicial decision (ra-
tiones decidendi, denoting here rather the minor premisses or facts
established in favour of the plaintiff or defendant, than the major
remiss or law relating to those facts) were taken into con-
sideration before the Exceptio rei judicatae was allowed to operate,
® plaintiff who lost his cause in consequence of Plus petitio or some
dilatory plea or by consumption of process (duration of suit for
eighteen months, or termination of praetorship) was no longer
held to have eternally forfeited his claim: but suitors were merely
restrained, in accordance with the real object of the institution,
from harassing their opponents with renewed litigation on the
precise questions that had once been adequately decided. The
rv. §§ 110-113]
PRESCRIPTION.
551
operation of the plea was not less powerful nor less extensive
but made more completely conformable to equity. Savigny,
§§ 280-801.
DE PERPETUIS ET TEMPORALIBUS ACTIONIBUS ET QUAE AD HEREDES
VEL IN HEREDES TRANSEUNT.
$110. Quo loco admonendi sumus
eas quidem actiones quae ex lege
senatusue consultis proficiscuntur,
perpetuo solere praetorem accom-
modare, eas uero quae ex propria
ipsius iurisdictione pendent, ple-
rum|que intra annum dare.
$111. Aliquando tamen ( praetor)
imitatur ius legitimum: quales sunt
eae quas bonorwm possessoribus
ceterisque qui heredis loco sunt,
accommodat. furti quoque manifesti
actio, quamuis ex ipsius praetoris
iuris dictione proficiscatur, perpetuo
datur; et merito, cum pro capitali
poena pecuniaria constituta sit.
$ 112. Non omnes actiones quae
in aliquem aut ipso iure conpetunt
aut a praetore dantur, etiam in
heredem aeque conpetunt aut dari
Solent. est enim certissima iuris
regula, ex maleficiis poenales ac-
tiones in heredem nec conpetere
nec dari solere, ueluti furti, ui bono-
rum raptorum, iniuriarum, damni
iniuriae. sed heredibus huius modi
actiones conpetunt nec denegantur,
excepta iniuriarum actione et si qua
alia similis inueniatur actio.
$113. Aliquando tamen (etiam)
ex contractu actio neque heredi
neque in heredem conpetit; nam
adstipulatoris heres non habet acti-
onem, et sponsoris et fidepromissoris
heres non tenetur.
$ 110. Actions founded on a law
or senatusconsultum are perpetual;
those founded on the edict are
usually annual.
$111. But some of them (in
which the praetor) copies the rule
of law are perpetual; for instance,
those which are granted to the prae-
torian successor and to other persong
holding the position of a civil suc-
cessor, though not such ($ 35). So
for theft detected in the commission,
the action, though praetorian, is per-
petual; and properly so, the pecu-
niary penalty being a mitigation of
capital punishment.
§ 112. The actions, whether civil
or praetorian, that lie against a man
do not always lie against his suc-
cessor, the rule being absolute that
for delict, for instance, theft, ra-
pine, outrage, injury to property,
no penal action, civil or praetorian,
lies against the successor of the de-
linquent ; but the successor of the
plaintiff may bring these actions
except in outrage and a few similar
CASES.
$ 113. An action upon contract
cannot always be brought by the
successor of the plaintiff, nor against
the successor of the defendant ; for
the successor of the adstipulator has
no action, nor does any lie against
the successor of the sponsor or fide-
promissor.
$ 110. Having considered what time may elapse between the
commencement of an action or joinder in issue (litis contestatio)
552 DE ACTIONIBUS, [rv. $$ 110-118.
and ite termination (sententia lata), Gaius proceeds to inquire what
time may elapse between the nativity of a right of action or the event
which marks the first moment of the right of action. (actio nata)
and the exercise of this right or actual commencement of the action.
Originally all rights of action were unlimited in duration (actio
perpetua); afterwards the praetors limited the right of bringing
some of the new actions which they introduced to the period of a
year from the date of the event on which the action was founded
(actio annua) At some subsequent period longi temporis prae-
scriptio was introduced in suits relating to land: if plaintiff and
defendant were domiciled in the same province, ten years’ possession,
accompanied with justus titulus and bona fides on the part of the
possessor, deprived the plaintiff of his vindicatio: twenty years'
possession was required if plaintiff and defendant were domiciled in
different provinces. Indeed in provincial land such possession not
only founded a prescription, that is, deprived the owner of his right
of action, but operated as a usucapion; that is, transferred the
ownership to the possessor. Constantine introduced a thirty years’
prescription: that is, ordained that an owner should lose his right
of action after thirty years’ possession without either justus titulus
or bona fides on the part of the possessor. Theodosius II, A. p. 424,
extended this thirty years' preseription from real actions, to which
it had hitherto been confined, to personal actions. See 2 $6 40—
61 comm., 4 $ 131 comm.
Prescription (as opposed to Usucapion) was required as a title or
mode of acquisition when either a subject (e. g. provincial land) or
@ person (e. g. peregrinus) was incapable of quiritary commercium
and Usucapio. After Caracalla the latter occasion ceased.
Justinian made longi temporis praescriptio, that is, possession for
ten or twenty years, the universal mode of Usucapion for immov-
ables; and added a second form called longissimi temporis prae-
scriptio, or extraordinary prescription ; ordaining that thirty years’
possession without justus titulus, but accompanied with bona fides,
should transfer ownership to the possessor: and that thirty years’
possession accompanied with mala fides should operate not as usu-
capion but merely as prescription, Cod. 7, 39, 8.
Whether movables were affected by longi temporis praescriptio
is controverted, Vangerow, $ 315: they seem to be included under
longissimi temporis praescriptio.
In the thirteenth century the canon law required as a condition
xv. §§ 110-113.] NATIVITY OF A RIGHT OF ACTION. 553
both of usucapion and of prescription, in all cases brought for re-
stitution of possession, continued bona fides (not merely bona fides
in the inception, as the civil law required for usucapion) on the
part of the possessor. This applied to the defendant in all real
actions and in various personal actions, viz. commodati, depositi,
locati, pignoraticia, or the action whereby a mortgagor recovers
possession of the thing he has mortgaged. Accordingly, by
canon law, the debitor rei alienae, as opposed to the debitor rei
propriae, had neither usucapion nor prescription in the absence of
continued bona fides. Savigny, § 244. The effect of this seems
to be to abolish prescription as opposed to usucapion as far as real
action (vindicatio) is concerned; for bona fides coupled with thirty
years’ possession would make the possessor proprietor.
The civil law, however, in respect of Dominion, recognized pre-
scription as distinct from usucapion, Let us consider what was the
case in respect of Servitudes.
There was originally,as we have already stated (2 §§ 28-39comm.),
usucapion either for all servitudes or at least urban servitudes, until
it was abolished by the lex Scribonia. The jurists, however, and
praetors recognized an acquisition of servitudes by Diuturnus usus,
Longa consuetudo, Longa quasi possessio, of ten years inter praesentes
or twenty years inter absentes. This required neither justus titulus
nor bona fides (and therefore is never called longi temporis prae-
scriptio) but only freedom from the three vices of possession: it
must be nec vi, nec clam, nec precario, Dig. 8, 5, 19, pr. Whether
any aequisition of servitudes on less stringent terms, corresponding
to longissimi temporis praescriptio in the case of dominion, was ever
recognized is not certain: Vangerow, § 351, supposes the contrary.
The extinction of personal and rural servitudes was produced in
the times before Justinian by continual non-usus during one year
in the case of movables, during two in the case of immovables.
Justinian extended the period for both movables and immovables
to ten years inter praesentes and twenty years inter absentes,
Cod. 8, 84, 18. No bona fides on the part of serviens is required.
If the exercise of the servitude was discontinuous (limited to certain
seasons, or alternate months, &c.) before Justinian the period required
for extinction was doubled : Justinian required in every case twenty
years, Cod. 8, 34,14, pr. Urban servitudes are extinguished not by
mere non-usus on the part of dominans but by additional usucapio
libertatis on the part of serviens, i.e. by possession of the servient
554 DE ACTIONIBUS. [rv. $$ 110-113.
tenement in such a condition that the servitude could not be ex-
ercised. Such is the state of the servient tenement in servitus
tigni immittendi when no beam is inserted and the hole where it
might be inserted is built up: or when, in the servitus ne luminibus
officiatur, dominans has built up his window and in front of it
serviens has erected a wall. The same period is required as for
extinction by non-usus: the same absence of violence, secrecy,
permission (and, by the canon law, the same bona fides) as for the
acquisition of other servitudes. Baron, Pandekten, § 171.
It appears then that dominans lost not only his right of action
but his servitude (jus) itself by longi temporis consuetudo: and
that, properly speaking, Prescription, or Limitation of right of
action, as opposed to Usucapio, has no existence in the sphere of
Servitude. (I have not been able to find any writer who exa-
mines this question.)
In every prescription, whether of longer or shorter duration,
two points have to be fixed: the moment at which prescription
begins and the moment at which it is terminated. I proceed to
the consideration of this problem.
The date of the Nativity of a right of action (actio nata), or the
moment from which prescription begins to run, is in Real actions
the moment when a Real right is violated; e.g. the moment when
the defendant takes unpermitted possession of a thing of which
the plaintiff is proprietor; or when a hirer or borrower converts
detention into possession by beginning to possess in his own name
and not in the name of the proprietor.
In Personal action on delict prescription begins to run from the
moment of the delict; for at this moment the sanctioning right of
the plaintiff to recover the penalty is complete.
Similarly in Quasi-contraete: prescription of tutelae actio begins
to run from the end of the guardianship: that of condictio indebiti
from the date of the mistaken payment.
In aetions on Contract, according to most writers including
Savigny, prescription similarly begins to run from the moment at
which the contract is violated, i.e. from the inception of the cre-
ditor’s sanctioning right. According to Vangerow, the running
of prescription does not always wait for the violation of the cre-
ditors primary right, or a breach of the contract by the debtor.
If a term for performance is fixed, then indeed prescription will
begin to run from the expiration of the term, i.e. from the violation
rv. §§ 110-113.] EFFECT OF PRESCRIPTION. 555
of the plaintiff's primary right, Cod. 7, 89, 7, 4: but whenever no
term is prefixed, prescription begins, not, as Savigny holds, from
the creditor's demand of performance but, from the completion of
the contract; i. e. contemporaneously with the origin of the primary
right. It precedes any violation of the plaintiff's right, unless we -
assume (what is absurd) that the default of instantaneous perform-
ance is such a violation.
Savigny would except from the rule those contracts which, like
mutuum, depositum, commodatum, precarium, essentially and in
their nature contemplate a certain delay in performance. In such
contracts he holds that prescription begins not from the completion
of the contract but from the demand of performance.
It seems paradoxical to maintain that for the purposes of pre-
scription the right of action precedes the existence of a wrong:
but Vangerow’s doctrine is confirmed by the Digest: Est scriptum
- . . eum qui rem deposuit, statim posse depositi actione agere:
hoc enim ipso dolo facere eum qui suscepit, quod reposcenti rem
non reddat, Dig. 16, 3, 22; from which it appears that the action
is equivalent to a demand. Similarly we read in the Institutions,
8, 15, 2 [Ex stipulatione pura] confestim peti potest. Indeed it
would be strange, as Vangerow observes, if the neglect of a creditor
or his successor to demand repayment for 100 years adjourned the
inception of prescription for all that period.
It is clear that the Nativity of an action is not to be identified
with Mora, but will often be an earlier occurrence. Mora, which
in respect of interest and liability for loss is attended with serious
consequences to a defendant (whereas praescriptio is adverse to the
plaintiff), does not arise before one of two events; either the expi-
ration of the term prefixed for payment, or the debtor’s refusal
to comply with the creditor’s demand, 2 § 280,comm. The demand
of the creditor is necessary to disprove the presumption that the
delay of payment was by his indulgence: no such condition delays
the nativity of a right of action.
The other limit of Prescription, or the event by which it is
broken (interruptio), is any recognition of a right by the defendant
or the institution of a suit by the plaintiff. The institution of a
suit was in earlier times identified with Litis contestatio: but in
the latest period, as this stage of procedure could be delayed by the
arts of the defendant, it was necessary to fix some other point,
with which this and the other effects of .Litis contestatio should
556 DE ACTIONIBUS. [rv. $$ 110-118,
be connected. Savigny, $ 278. And accordingly Citation, awarded
by the judge in response to the libellus of the plaintiff and served
upon the defendant (insinuatio, conventio) by a public officer, was
deemed to be the moment at which an action commences, and
prescription is interrupted, or usucapion is revocable. Interruptio
per conventionem introducta, Cod. 7, 39,7, 5. Qui obnoxium suum
in judicium clamaverit et libellum conventionis ei transmiserit . ...
videri jus suum omne in judicium deduxisse et esse interrupta
temporum curricula, Cod. 7, 40, 8.
Vangerow admits that Citation is the event which interrupte
prescription in actiones perpetuae, but holds that Litis contestatio
(a later event) produces this effect in actiones temporales. Savigny
points out, § 242, that interruption by Litis contestatio in the
case of actiones temporales is not mentioned in the Digest because
it survived in the time of Justinian, but because the older juriste
who speak of interruption were unacquainted with any prescription
of actiones perpetuae, these being, in early times, imprescriptible.
We must distinguish between the interruption and the mere
suspension, dormancy, or stay, of prescription. When prescription
is interrupted (for instance, by acknowledgment of the debt) the
already elapsed period of inactivity on the part of the plaintiff is
cancelled and the whole prescription must recommence from the
date of the interruption, When prescription is suspended, if such
suspension takes place after prescription has begun to run, the
period which has elapsed is not invalidated but is added to the
period which follows the removal of the obstacle which caused the
suspension, Suspension, as expressed in the modern maxim: Agere
non valenti non currit praescriptio, is produced by some inability
of the plaintiff to sue: e.g. by the infancy of the defendant either
in perpetual or temporal actions: by the minority of the defendant
in perpetual but not in temporal actions, Cod. 2, 40, 5: by the
obstacles recognized in the rules of tempus utile, 2 § 165 comm., and
by the beneficiumdeliberandi accorded to the successor, 2 $162 comm.
By the ordinance de tigno injuncto in the Twelve Tables the nght of
the eowner of building materials to sue for them was suspended so
long as they formed part of a building, Inst. 2, 1, 7, 10.
Exception had sometimes a stronger, sometimes a weaker, oper-
ation: the stronger effect is the neutralizing of both civilis and
naturalis obligatio. Such is the effect of the exceptio Se. Vellei-
ani,8§§ 110-127 comm. The weaker operation is a bar to civilis
rv. § 110-113.] ACTIVE AND PASSIVE TRANSMISSION. 557
obligatio, but leaves naturalis obligatio unimpeded and is instanced
by exceptio Sc. Macedoniani, 8 $$ 90, 91 comm. Naturalis obli-
gatio, as we have already mentioned, 8 $$ 88, 89 comm., besides
the negative feature that it is not & ground to support an
action has six positive features: it excludes indebiti condictio in the
event of payment by mistake, and it is a ground to support com-
pensatio, novatio, pignus, fidejussio, constitutum. Let us examine
whether prescription or Exceptio temporalis had the weaker or the
stronger operation.
We must distinguish between Real and Personal actions.
The effect of the prescription (tricennalis exceptio) of a real action
(vindieatio) is, that the right of the original owner continues but
is not ground to support an aetion against the mala fide possessor
or his successor. If the thing passes into the possession of a
stranger, then the original owner ean recover it from him by
vindicatio : and if it comes by lawful means into the possession of
the original owner, the mala fide possessor cannot recover it from
him by vindieatio, Cod. 7, 39, 8, 1. In the event of bona fides
there could be no question of prescription ; because then, as we have
seen, the very jus of the original owner would have been extin-
guished. In real actions, then, prescription has the weaker operation.
The effect of prescription in personal actions is controverted.
Savigny holds that the stronger effect is confined to exceptions
founded on jus naturale; and that prescription being, as shown by
its arbitrary numerical character, an institution of jus civile, can
only have the weaker operation, i.e. leaves untouched the obligatio
naturalis, § 249. Vangerow, however, seems to show conclusively,
§ 151, that this doctrine is not tenable. Although the old insti-
tation of pendency-limitation or, process-prescription, mentioned
by Gaius, § 104, had only the weaker operation (quia naturale
debitam manet, Dig. 46, 8, 8, 1), many passages of the Digest
show that in temporal actions prescription of right to sue had
the stronger operation, excluding fidejussio, Dig. 46, 1, 37, and
eonstitutum, Dig. 18, 5, 18, 1, and admitting condictio indebiti,
Dig. 46, 8, 25 : and there is no reason why ite operation should
not be equally strong in perpetual actions. Indeed the very object
of prescription, the setting of some limit to the duration of un-
certainty, would be defeated if a creditor were allowed to enforce
by Compensation a claim that for an indefinite period he had not
attempted to enforce by action. Prescription, then, in all personal.
558 DE ACTIONIBUS. [rv. $$ 110-113.
actions has the stronger operation. (English law seems to differ, at
least so far as it recognizes a debt made irrecoverable by the statute
of limitations as a sufficient consideration to give legal force to the
debtor's promise to pay : for, in the absence of all legal obligation,
a mere moral obligation would admittedly not suffice to bind the
debtor before the tribunals. Also a lien, or right to detain goods
till a debt is satisfied (pignus), exists after the remedy by action is
barred by the Statute of Limitations.)
Has prescription the same effect upon the grounds of defence
(Exceptions) that it has upon the grounds of attack (Actions): can
there be temporis Replicatio as well as temporis Exceptio? This
depends upon the nature of the exception. Exceptions are
either unaccompanied by actions or accompanied. An instance
of the former class is the exceptio rei judicatae when judgment
in @ vindicatio is given in favour of the possessor. This merely
denies the right of the plaintiff without affirming the nght of
the defendant, and therefore cannot be used by the defendant as
a ground of action: but it may be employed by the defendant as
a means of defence against the plaintiff or his successor after any
lapse of years,
An instance of exception accompanied by action is exceptio
metus, which belongs to a defendant who may, if he chooses, be a
plaintiff in an actio metus.
Savigny holds, § 249, that such exceptions are imprescriptable ;
but the better opinion seems to be that they have the same duration
as the nght of action (in the words of the French jurists: Tant
dure l'aetion, tant dure l'exception): for the reason alleged for
making exceptions imprescriptible; Is cum quo agitur non habet
potestatem quando conveniatur, Dig. 44, 4, 5, 6, the inability of
the person armed with the exception to fix when the matter shall
be litigated, is inapplicable when the same person is also armed
with a right of action. Vangerow, § 151.
$ 111. The rule for the duration of actions is as follows; purely
restorative or remedial actions (quae rei persecutionem habent) i. e.
actions where there is neither gain for the plaintiff nor loss for the
defendant, but the patrimony of each is left at ite original level,
4 $ 7, are perpetual; that is to say are prescribed in thirty years.
Penal actions (poenae persecutoriae) both those where there is
no gain to the plaintiff but possibly a loss to the defendant (indem-
nifieatory or unilaterally penal actions), as well as those where if
rv. § 110-113.] ACTIVE AND PASSIVE TRANSMISSION. 659
judgment passes for the plaintiff there is enrichment for the
plaintiff and impoverishment for the defendant (bilaterally penal
actions) are annual.
Thus the actio doli mali, if brought for complete indemnification,
was annual: but if the damages were limited to the amount gained
by the defendant, in which case the action was rei persecutoria, it
was perpetual, Dig. 4, 3, 28. The formula, in factum and arbi-
traria, is thus restored by Keller, Civilprocess, § 33: Si paret dolo
malo Numeri Negidii factum esse, ut Aulus Agerius fundum
Cornelianum Titio (or, Numerio Negidio) mancipio daret, judex, nisi
arbitratu tuo Numerius Negidius Aulo Agerio rem restituet, quanti
ea res erit, Numerium Negidium Aulo Agerio condemna : Si non
paret absolve.
When a night of action was limited to a year, this was an
annus utilis, that is, a year of dies utiles, of days open to juris-
diction, and on which the plaintiff was not hindered by any insur-
mountable obstacle, such as absence of plaintiff or defendant, illness
of plaintiff and inabihty to appoint a procurator, Dig. 44, 3,1. An
annus utilis, though nominally a year, might really be a much
longer period. Where a right of action lasted beyond a year, every
day was counted (tempus continuum), 2 $ 178. From the inde-
finite duration of annus utilis it is clear that the suggestion,
Inst. 4, 12, pr., of a connection between the annus of prescription
and the annus of the praetorship is purely fanciful.
§ 112. The transmission of an action to the successors of the
parties is either active transmission, i.e. transmission to the suc-
cessor of the plaintiff, or passive transmission, 1. e, transmission to
the successor of the defendant.
The general rule relating to transmission is, that all actions are
transmissible, both actively, that is, to the heirs of the plaintiff,
and passively, that is, to the heirs of the defendant.
The exceptions are that (1) as to active transmission Vindictive
actions (of which the type is actio injuriarum), i. e. actions brought
to avenge wrong to the feelings rather than to repair wrong to the
property, are not transmitted to the heirs of the plaintiff; and
that (2) as to passive transmission, penal actions, whether bila-
terally or unilaterally penal (the latter sometimes called rei per-
secutoriae ex delicto) are only transmitted against the heirs of the
defendant so far as the inheritance has been enriched by his wrong.
Condictio furtiva lies against the heres of the defendant for the
560 DE ACTIONIBUS. (xv. $$ 110-113.
whole amount (in solidum) : because, although this action is occa-
sioned by delict, it 1s not deemed to be delictual or penal, but purely
restorative (rei persecutoria).
Penalactions, bilateral and unilateral, when once brought, that
is, when they have once reached the stage of htis contestatio,
become capable of both active and passive transmission : Poenales
autem actiones, si ab ipsis principalibus personis fuerint contestatae,
et heredibus dantur et contra heredes transeunt, Inst. 4, 12, 1.
Under Justinian, when the Adstipulator, Sponsor, and Fidepro-
missor had disappeared, all actions founded on contract were
passively transmissible in solidum against the heirs of the de-
fendant ; and it was apparently a mere inadvertence of Tribonian
to repeat, Inst. 4, 12, 1, the words of Gaius, § 113, which con-
template the possibility that an action founded on contract should
be incapable of passive transmission.
English law is more favourable than Roman law to the plaintiff
in actions ex delicto in respect of the passive transmission of the
remedy.
The executors of a testator and administrators of an intestate have
the same remedy for injury to the personal property of the deceased
as he would have had in his lifetime.
For an injury committed against his real property within six
months of his death, they may bring an action, within one year after
his death. And for an injury to either real or personal property
committed within &x months before the death of the wrong-doer,
an action may be brought against his executors or administrators
within six months after they have taken on themselves adminis-
tration. (Cf. Pollock, Law of Tort, § 111, pro capitali poena, &o. ;
cf. 8 $ 189.)
SI REUS ANTE REM IUDICATAM BATISFACIAT ACTORI.
$ 114. Superest ut dispiciamus,
si ante rem iudicatam is cum quo
agitur, post acceptum iudicium
satisfaciat actori, quid officio iudicis
conueniat, utrum absoluere, an ideo
potius damnare, quia iudicii acci-
piendi tempore in ea causa fuerit,
ut damnari debeat. nostri praecep-
iores absoluere eum debere existi-
mant, nec interesse culus generis
sit iudicium ; et hoc est quod uulgo
dicitur Sabino et Cassio placere
$ 114. We next inquire whether,
if the defendant before judgment is
pronounced, but after the formula
is delivered, satisfies the plaintiff,
the judex has power to absolve him,
or must condemn him, because he
was liable to condemnation when
the formula was delivered. The
authorities of my school hold that
he should be absolved in every
kind of action; and hence the say-
ing that Sabinus and Cassius con-
1v. § 114. ]
omnila iudicia absolutoria esse.
|[— de bonae fidei iudiciis
autem idem sentiunt, quia in eius-
modi iudiciis liberum est officium
iudicis. tantumdem | et de i rem
actionibus putant, quia formulae
uer|bis id ipeum exprimatur
OMNIA IUDICIA ABSOLUTORIA.
561
sider all actions to involve the
power of absolution. The other
school agree in respect of bona fide
actions, where the judex has more
discretion, and of real actions
because there is an express provi-
sion to this effect in the terms of
the formula: (as also in respect of
actiones arbitrariae in personam,
since they likewise contuin an ex-
press provision in their formula
——|quibus-——|—. petentur et
——|— interdum enim
| sunt etiam | in
personam tales actiones in quibus
exprimitur —| | actori qu that the judex is not to condemn if
—— ————| paratus ad the defendant satisfies the plaintiff ;
actoris ———— jactum but not in respect of actions stricti
fuerit. juris).
§ 114. Respecting the power of absolution, Justinian confirmed
the opinion of the Sabinians, Inst. 4, 12, 2.
The principle, Omnia judicia esse absolutoria indicates an ex-
ception to the effects of Litis contestatio. The motive of the effects
ascribed to Litis contestatio is in general to avert from the plaintiff
the injurious consequences of the protracted duration of a trial.
Accordingly if judgment passed in his favour he was put into the
position he would have occupied if judgment had immediately fol-
lowed on Litis contestatio. If this rule had been universal no event
supervening on Litis contestatio could have extinguished the plain-
tiffs nght to have judgment in his favour: but this in some cases
would have been unjust to the defendant, as was admitted by all
juriste in the case of personal actions ex fide bona.
In personal actions stricti juris it was at first held that what
would have been an adequate ground for the extinction of the
plaintiff's claim if it had happened before Litis contestatio, e. g. the
purely casual destruction of the subject of litigation, was ineffectual
to save the defendant from condemnation if it happened after Litis
contestatio. Finally, however, the doctrine prevailed that, in the
absence of Mora, such an event was effectual for the absolution of
the defendant, even when it occurred after Litis contestatio. See
p. 425.
So in real actions, the purely casual destruction of an object in
the hands of a bona fide possessor, even when it happened after
joinder in issue, produced the absolution of the defendant, on the
ground that impossibilium non est obligatio. It is to be observed,
however, that the grounds effectual for the absolution of the de-
00
562 DE ACTIONIBUS. [rv. $$ 115-137.
fendant in a real action are limited to those which destroy the
Obligation engendered by Litis contestatio. The defendant, that is
to say, is subject to condemnation in spite of usucapion of property
completed after Litis contestatio, in spite of extinction of servitude
by non-usus completed after the same date, in spite similarly of
casual destruction of the subject in the hands of mala fide possessor
or after mora, and in spite of destruction by the culpa of bona fide
possessor.
Subject to this limitation, the rule was universal: omnia judicia
esse absolutoria: i.e. all classes of action, real as well as personal,
stricti juris as well as bona fide, whatever the original right of the
plaintiff, may terminate by a judgment in favour of the defendant
in consequence of some event (casual destruction of the subject,
voluntary restitution by the defendant, &c.) subsequent to Litis con-
testatio. Vangerow, $ 160. Compare what has been stated respecting
actiones Arbitrariae, $6 47 comm.
The words in the text ‘quia formulae verbis id ipsum exprima-
tur’ refer to the direction to the judex in the formula petitoria not
to condemn the defendant if he restores the thing, which is the
object of the action, to the plaintiff.
DE EXCEPTIONIBUS.
$ 115. Sequitur ut de exceptio-
nibus dispiciamus.
$116. Conparatae sunt autem
exceptiones defendendorum eorum
gratia cum quibus agitur. saepe
enim accidit, ut quis iure ciuili
teneatur, sed iniquum sit eum iu-
dicio condemnari.
$116a. Veluti (8) stipulatus
sim a te pecuniam tamquam cre-
dendi causa numeraturus, nec nu-
merauerim ; nam eam pecuniam a
ie peti posse certum est, dare enim
te oportet, cum ex stipulatu teneris;
sed quia iniquum est te eo nomine
condemnari, placet per exceptionem
doli mali te defendi debere.
$ 1165. Item si pactus fuero te-
$115. We have next to examine
the nature of Exceptions.
$ 116. Exceptions are intended
for the protection of the defendant
who often is under a liability, say,
by the civil law when justice forbids
his condemnation.
$ 116a. If, for instance, I have
made you solemnly promise to pay
me & sum of money, as a pre-
liminary to my advancing you the
money, and then never advanced
it; Ican sue you for the money,
for you are bound by the promise,
but it would be iniquitous that you
should be compelled to fulfil such
& promise, and therefore you are
permitted to impeach my claim by
the exception of Fraud.
$ 1166. Or if I agree not to de-
1v. $$ 115-137.]
cum, ne id quod mihi debeas, a te
petam, nihilo minus [id ipsum] a te
petere possum dari mihi oportere,
quia obligatio pacto conuento non
tollitur; sed placet debere me pe-
tentem per exceptionem pacti con-
uenti repelli.
$ 117. In his quoque actionibus
quae (non) in personam sunt, ex-
ceptiones locum habent. ueluti si
metu me coegeris aut dolo induxeris,
ut tibi rem aliquam mancipio da-
rem; nam si eam rem a me petas,
datur mihi exceptio per quam, si
metus causa te fecisse uel dolo malo
arguero, repelleris.
$ 117a. Item si fundum litigio-
sum sciens a non possidente emeris
eumque a possidente petas, opponi-
tur tibi exceptio per quam omni
modo summoueris.
$118. Exceptiones autem alias
in edicto pruetor habet propositas,
alias causa cognita accommodat.
quae omnes uel ex legibus uel ex
his quae legis uicem optinent, sub-
stantiam captunt,uel ex iurisdictione
praetoris proditae sunt.
$ 119. Omnes autem exceptiones
in contrarium concipiuntur, quam
adfirmat is cum quo agitur. nam
si uerbi gratia reus dolo malo ali-
quid actorem facere dicat, qui forte
pecuniam petit quam non nume-
rauit, sic exceptio concipitur 8I IN
EA RE NIHIL DOLO MALO A. AGERII
FACTVM SIT NEQVE FIAT; item si
dicaé contra pactionem pecuniam
peti, ita concipitur exceptio SI INTER
A. AGERIVM ET N. NEGIDIVM NON
CONVENIT NE EA PECVNIA PETE-
RETVR; et denique in ceteris causis
similiter concipi solet; ideo scilicet
. quia omnis exceptio obicitur qui-
dem a reo, sed ita formulae inser-
iter, ut condicionalem faciat con-
demnationem, id est ne aliter iudex
eum cum quo agitur condemnet,
quam si nihil in ea re qua de agitur
DE EXCEPTIONIBUS.
563
mand a debt, my right to sue the
debtor continues unimpaired, be-
cause formless agreement cannot
extinguish civil obligations, but my
action would be defeated by an
exception alleging the agreement.
$ 117. Real actions also admit
of exceptions; for instance, if by
threats of violence or by fraud you
drove or seduced me to grant a
thing to you by mancipation; if
you sue me for it, I am allowed to
plead intimidation or fraud, and if
I prove it, I defeat your claim.
$ 117a. Or if you knew an estate
was a subject of litigation, and
bought it of a person not in posses-
sion, when you claim it of a person
in possession you are defeated by
an exception.
$ 118. Exceptions are either pro-
vided by the edict, or, on cause
Shown, are granted by the praetor,
and are either founded on law or
something equivalent to law, or on
the praetor's judicature.
$ 119. Exceptions take the form
of & supposition opposite to the
allegation of the defendant; if, for
example, the defendant imputes
fraud to the plaintiff in that he sues
for money which he never advanced,
the exception is thus expressed:
* [f in that matter there was and is
no fraud of Aulus Agerius.’ Again,
if he allege an agreement not to
claim the money, the exception is
thus formulated: ‘If Aulus Agerius
and Numerius Negidius did not
agree that the money should not be
demanded ;’ and so in other cases.
For every exception is alleged by
the defendant but is inserted in the
formula as a (second) condition of the
condemnation : that is, the judex is
instructed not to condemn the de-
fendant unless (firstly, the existence
002
564
dolo actoris factum sit; item ne
aliter iudex eum condemnet, quam
si nullum pactum conuentum de
non petenda pecunia factum fuerit.
$ 120. Dicuntur autem excep-
tiones aut peremptoriae aut dila-
toriae.
$ 121. Peremptoriae sunt quae
perpetuo ualent, nec eultari pos-
gunt, ueluti quod metus causa, aut
dolo malo, aut quod contra legem
senatusue consultwm factum est,
aut quod res iudicata est uel in
iudicium deducta est, item pacti
conuenti quod factum est, ne om-
nino pecunia peteretur.
$ 122. Dilatoriae sunt excep-
tiones quae ad tempus ualent,
ueluti illius pacti conuenti quod
factum est uerbi gratia, ne intra
quinquennium peteretur; finito
enim eo tempore non habet locum
exceptio. cui similis exceptio est
litis diuiduae et rei residuse. nam
si quis partem rei petierit et intra
eiusdem praeturam reliquam par-
tem petat, hac exceptione sum-
mouetur quae appellatur litis diui-
duae; item ei is qui cum eodem
plures lites habebat, de quibusdam
egerit, de quibusdam distulerit, ut
ad alios iudices eant, si intra eius-
dem praeturam de his quas distu-
lerit, agat, per hane exceptionem
quae appellatur rei residuae, sum-
mouetur.
$1283. Obseruandum est autem
ei cui dilatoria obicitur exceptio,
ut differat actionem; alioquin si
obiecta exceptione egerit, rem per-
dit; non enim post illud tempus
quo integra re (eam) euitare po-
terat, adhuc ei potestas agendi
superest re in iudicium deducta
et per exceptionem perempta.
DE ACTIONIBUS.
[1v. $$ 115-137.
of the plaintiffs right is proved,
and unless, secondly, no counter-
vailing right of the defendant 18
proved: e.g.) there is no fraud to
vitiate the title of the plaintiff, or
there was no agreement where-
by his claim was informally re-
leased.
$ 120. Exceptions are either per-
emptory or dilatory.
$121. Peremptory exceptions are
obstructions of unlimited duration
and insurmountable, as the plea of
intimidation, fraud, contravention of
law or senatusconsultum, previous
decision or litigation, or formless
agreement never to sue.
$ 122. Diletory exceptions are
merely temporary obstructions, such
as an agreement that a debt shall
not be sued for within five years,
for in five years the exception ceases
to be pleadable. "There are similar
exceptions against division or separ-
ation of actions. After suing for
part of a debt if a man sue for the
remainder in the same praetorship,
he is by the exception
against division of actions. Or,
when a man who has several claims
against the same defendant brings
some actions and postpones others
in order to come before & new
panel of judices, if within the
same praetorship he bring any of
the postponed actions, he is met by
the exception against separation of
actions.
§ 123. A plaintiff liable to a
dilatory exception should be careful
to postpone his action, for the ex-
ception once pleaded is fatal; and
although, if the matter had never
been mooted, time would have re-
moved the obstacle, yet it will not
now, as his right has been litigated
and extinguished.
1v. $$ 115-137.]
$ 124. Non solum autem ex tem-
pore, sed etiam ex persona dila-
toriae exceptiones intelleguntur,
quales sunt cognitorlae: ueluti si
is qui per edictum cognitorem dare
non potest, per cognitorem agat,
uel dandi quidem cognitoris ius
habeat, sed eum det cui non licet
cognituram suscipere. nam si
obiciatur exceptio cognitoria, si
ipse talis erit, ut ei non liceat
cognitorem dare, ipse agere potest ;
si uero cognitori non liceat cogni-
turam suscipere, per alium cogni-
torem aut per semet ipsum liberam
habet agendi potestatem, et tam
hoc quam illo modo euitare ( potest)
exceptionem ; quodsi dissimulaue-
rit et per cognitorem egerit, rem
perdit.
$ 125. Sed peremptoria quidem
exceptione si reus per errorem non
fuerit usus, in integrum restituitur
adiciendae exceptionis gratia; dila-
toria uero si non fuerit usus, an in
integrum restituatur, quaeritur.
DE REPLICATIONIBUS.
565
$ 124. Irrespective of time, per-
sonal incapacities produte dilatory
exceptions, such as those which re-
late to the office of cognitor, for
some persons are disabled by the
edict from appointing a cognitor,
and others are disabled from dis-
charging the office of cognitor. A
principal disabled from appointing
& cognitor can sue in his own name,
and if one person is disabled from
acting as cognitor, the principal can
employ another, or sue in his own
name, and in either way avoid the
exception; but if he disregard the
incapacity and sue by cognitor, he
loses his action and has consumed
his remedy.
§ 125. Ifa peremptory exception
be inadvertently omitted, the de-
fendant is relieved by Restitution,
and allowed to amend his defence:
whether the same is true of a
dilatory exception, is a matter of
controversy.
DE REPLICATIONIBUS.
§ 126. Interdum euenit, ut ex-
ceptio quae prima facie iusta uidea-
tur, inique noceat actori. quod
cum accidat, alia adiectione opus
est adiuuandi actoris gratia; quae
adiectio replicatio uocatur, quia per
eam replicatur atque resoluitur uis
exceptionis. nam si uerbi gratia
pectus sum tecum, ne pecuniam
quam mihi debes, & te peterem,
deinde postea in contrarium pacti
sumus, id est ut petere mihi liceat,
et, si agam tecum, excipias tu, ut
ita demum mihi condemneris, 8i
NON CONVENERIT NE EAM PECVNIAM
PETEREM, nocet mihi exceptio pacti
conuenti; namque nihilo minus hoc
uerum manet, etiamsi postea in
contrarium pacti sumus; sed quía
$ 126. Sometimes an exception,
which in the absence of counter
allegations seems just to the defen-
dant, is unjust to the plaintiff, and
then, to protect the plaintiff, the
praetor adds to the instructions a
clause called Replicatio, because it
parries and counteracts the ex-
ception. If, for instance, after we
agreed that I should not sue you
for a debt, we agreed that I might
sue ; if, when I sue, you plead the
agreement that I should not sue,
you bar my claim, for your alle-
gation is true; but, as it would be
unjust that I should be prevented
from recovering, I am allowed to
reply by pleading the subsequent
agreement, thus: ‘If there was no
566
iniquum est me excludi exceptione,
replicatio mihi datur ex posteriore
pacto hoc modo 81 NON POSTEA
CONVENIT YT MIHI EAM PECVNIAM
PETERE LICEBET.
$ 126 a. Item si argentarius pre-
tium rei quae in auctionem uenerit,
persequatur, obicitur ei exceptio,
ut ita demum emptor damnetur,
8I EI RES QVAM EMERIT, TRADITA
EST; et est lusta exceptio; sed si
in auctione praedictum est NE ANTE
EMPTORI (RES) TRADERETVE QVAM
SI PRETIVM SOLVERIT, replicatione
tali argentarius adiuuatur AvT 8
PRAEDICTVM EST, NE ALITER EMP-
TORI RES TRADERETVR, QVAM SI
PRETIVM EMPTOR SOLVERIT.
§ 127. Interdum autem euenit,
ut rursus replicatio quae prima
facie iusta sit, inique reo noceat.
quod cum accidat, adiectione opus
est adiuuandi rei gratia, quae dupli-
catio uocatur.
$ 128. Et si rursus ea prima
facie iusta uideatur, sed propter
aliquam causam inique actori no-
ceat, rursus adiectione opus est
qua actor adiuuetur, quae dicitur
triplicatio.
$129. Quarum omnium adiec-
tionum usum interdum etiam ul-
terius quam diximus uarietas nego-
tiorum introduxit.
‘DE ACTIONIBUS.
[rv. $$ 115-137.
subsequent agreement that I might
sue.’
§ 126 a. Soifa banker sue for the
price of goods sold by auction, he
may be met by the plea that they
were never delivered, and this is a
valid exception. But if it was a
condition of the sale, that the goods
should not be delivered to the
purchaser before payment of the
purchase-money, the banker is per-
mitted to insert the Replicatio: ‘or
if it was a condition of the sale that
the goods should not be delivered
till the price was paid.’
§ 127. Sometimes a Replicatio,
though just on the face, is unjust
to the defendant; and then, to pro-
tect the «defendant, the praetor
adds a clause called Duplicatio
(Rejoinder).
$ 128. Again, if this, though just
in appearance, is unjust to the
plaintiff, he is protected by another
clause called Triplicatio (Surre-
joinder).
$129. And sometimes further
additions are required by the multi-
plicity of ciroumstances by which
dispositions may be successively or
contemporaneously affected (Re-
butter and Surrebutter).
DE PRAESORIPTIONIBUS.
§ 130. Videamus etiam de prae-
scriptionibus quae receptae sunt
pro actore.
$131. Saepe enim ex uns eadem-
que obligatione aliquid iam prae-
stari oportet, aliquid in futura
praestatione est: ueluti cum in
singulos anmos uel menses certam
pecuniam stipulati fuerimus ; nam
finitis quibusdam annis aut men-
sibus huius quidem temporis pecu-
$ 130. We next proceed to notice
the Praescriptio, a clause de-
signed for the protection of the
plaintiff.
§ 131. One and the same obliga-
tion may entitle us to receive pay-
ment of one sum at present and
another sum in future. When an
annual or monthly payment of a
certain sum is stipulated, on the
expiration of a year or month we
are entitled to present payment for
xv. $$ 115-137.]
piam praestari oportet, futurorum
autem annorum sane quidem obli-
gatio contracta intellegitur, prae-
statio uero adhuc nulla est. si
ergo uelimus id quidem quod prae-
stari oportet, petere et in iudicium
deducere, futuram uero obligationis
praestationem in integro relinquere,
necesse est ut cum hac praescrip-
tione agamus EA RES AGATYB CVIVS
REI DIES FVIT; alioquin si sine hac
praescriptione egerimus, ea scilicet
formula qua incertum petimus,
cuius intentio his uerbis concepta
est QVIDQVID PARET N. NEGIDIVM
A. AGERIO DARE FACERB OPORTERE,
totam obligationem, id est etiam
futuram in hoc iudicium deducimus,
et quae ante tem|pus obligatio——|
$ 131a. Item si uerbi gratia ex
empto agamus, wt nobis fundus
mancipio detur, debemus hoc modo
praescribere EA RES AGATVE DE
FVNDO MANCIPANDO, ut postea, si
uelilmus uacuam possessionem nobis
tradi, trad—| |—sumus, to-
tius illus iuris obligatio illa in-
cerita actione QVIDQVID OB EAM
REM N. NEGIDIVM A. AGERIO DARE
FACERE OPORTET, per intentionem
consumitur, ut postea nobis agere
uolentibus de uacua possessione tra-
denda nulla supersit actio.
$ 132. Praescriptiones autem ap-
pellatas esse ab eo quod ante for-
mulas praescribuntur, plus quam
manifestum est.
$ 133. Sed his quidem tempori-
bus, sicut supra quoque notauimus,
omnes praescriptiones ab actore
proficiscuntur. olim autem quae-
DE PRAESCRIPTIONIBUS.
567
the term expired, and to future pay-
ment for the future terms. If, then,
we intend to claim and sue for
the sum at present due, without
bringing the future payments into
litigation, we must employ the
Praescriptio: ‘Let the trial relate
exclusively to the right of present
payment.’ Otherwise, if we sue
without this Praescriptio, the in-
definite Intentio, ‘Whatever it be
proved that Numerius Negidius
ought to convey to or perform for
Aulus Agerius,’ brings our whole
right to future as well as to present
payment before the judex, and, what-
ever payment may be due in future,
we only recover what is due at the
commencement of the suit, and are
barred from any subsequent ac-
tion.
$131a. So if we sue upon a
purchase for the conveyance of land
by mancipation, we must prefix
the Praescriptio: ‘Let the tral
relate exclusively to the mancipa-
tion of the land,’ in order that sub-
sequently, when vacant possession
is to be delivered, we may be able
to sue again on purchase for
delivery of possession ; as, with-
out this Praescriptio, all our right
under that title is included in the
uncertain Intentio, ‘Whatever on
that ground Numerius Negidius
ought to convey to or perform for
Aulus Agerius,’ and is exhausted
by the commencement of the first
action; so that afterwards, when
we want to sue for the delivery of
vacant possession, we have no right
of action.
§ 132. The Praescriptio is named
from preceding the formula, as
hardly needs to be stated.
§ 133. At present, as I observed,
all praescriptions are inserted by
the plaintiff; formerly some used
to be employed by the defendant,
568
dam et pro reo opponebantur, qualis
illa erat praescriptio EA RES AGA-
TVR, 8! IN BA RE PRAEIVDICIVM
HEREDITATI NON FIAT, quae nunc
in speciem exceptionis deducta est,
et locum habet, cum petitor here-
ditatis alio genere iudicii prae-
iudicium hereditati faciat, ueluti |
cum singulas res pefat; est enim
iniquum per unius rei—
(23 uersus in C legi nequeunt)
—— —CI.
$ 134. . . intentione formulae
det—m est, cui dari oporteat; et
sane domino dart oportet quod
geruus stipulatur; af in praescrip-
tione de facto quaeritur, quod se-
cundum naturalem significationem
uerum esse debet.
$ 135. Quaecumque autem dixi-
mus de seruis, eadem de ceteris
quoque personis quae nostro iuri
subiectae sunt, dicta intellegemus.
$136. Item admonendi sumus,
si cum ipso agamus qui incertum
promieerit, ita nobis formulam esse
propositam, ut praescriptio inserta
sit formulae loco demonstrationis
hoc modo IVDEX ESTO. QVOD A.
AGERIVS DE N. NEGIDIO INCERTVM
STIPVLATVS EST, CVIVS REI DIES
FVIT, QVIDQVID OB EAM REM NX.
NEGIDIVM A. AGERIO DARE FACERE
OPORTET et reliqua.
$ 137. Si cum sponsore aut
fideiussore agatwr, praescribi solet
in persona quidem sponsoris hoo
modo EA RES AGATVR, QVOD A.
AGERIVS DE L. TITIO INCERTVM
STIPVLATVS EST, QVO NOMINE N.
NEGIDIVS SPONSOR EST, CVIVS REI
DIES FVIT, in persona uero fide-
iussoris KA RES AGATVR, QVOD N.
NEGIDIVS PRO L. TITIO INCERTVM
FIDE 8VA ESSE IVSSIT, CVIVS REI
DE ACTIONIBUS.
[1v. $$ 115-137.
for instance, the Praescriptio: ‘Let
this question be tried if it does not
prejudice the question of succes-
sion ;’ which clause is now trans-
formed into an exceptio, and is
employed when the claimant of a
succession brings another action
which prejudges the right of suc-
cession; as, for instance, if he sues
for a part of the heritage; for it
would be unjust [to make the de-
cision of an action respecting an
entire inheritance a mere corollary
of a decision respecting a less
important issue. |
$ 184. If an action is brought
on & contract made by a slave, the
intention names the person entitled
to recover, that is, the master; and
the prescription gives the true
history of the facts relating to the
contract.
$135. What has been said of
slaves applies to all persons subject
to a superior.
¢
§ 136. We must further remark,
that when the principal promisor
of an uncertain sum is sued, the
formula contains a Praescriptio in
place of a Demonstratio, thus:
* Let CD be judex. Whereas Aulus
Agerius stipulated an uncertain sum
from Numerius Negidius, whatever
IN EXCLUSIVE RESPECT OF THE
SUM DUE AT PRESENT on that
ground Numerius Negidius ought
to convey to or perform for Aulus
Agerius, &c.
§ 137. When a sponsor or fide-
jussor is sued, in the case of the
sponsor the Praescriptio is as fol-
lows: ‘LET THE TRIAL on the Sti-
pulation by Aulus Agerius that an
uncertain sum should be peid by
Lucius Titius, of which stipulation
Numerius Negidius was sponsor,
BE CONFINED TO THE PAYMENT DUE
AT PRESENT;' in the case of a
fidejussor: ‘ LET THE ACTION on the
rv. §§ 115-137.] NEGATION AND COLLISION. 569
DIES FVIT; deinde formula subi- guaranty of Numerius Negidius
citur. that an uncertain sum should be
paid by Lucius Titius, BE CONFINED
TO THE PAYMENT DUE AT PRESENT ;’
and then follows the rest of the
formula.
An explanation of the nature of Exceptions requires to be based
on a review of the general incidents of litigation.
In every action there is some contention, allegation, or averment
of a plaintiff which is met or encountered by some contention,
allegation, or averment of a defendant.
The contention of the plaintiff (intentio) is the assertion of some
right of the plaintiff: e.g. in a real action, the assertion of do-
minion (si paret illam rem Auli Agerii esse): in a personal action,
the assertion of an obligation (si paret Numerium Negidium Aulo
Agerio illam rem dare facere oportere) In an action with a
formula in factum concepta there is an implicit or indirect assertion
of a right, although explicitly and directly the intentio only asserts
the fact which forms the title on which such right is founded.
In the wording of the formula the nght of the plaintiff appears
as an hypothesis; because the formula or instruction to the judex
is a hypothetical command, expressed in a sentence of which the
intentio forms the antecedent or protasis, and the condemnatio the
consequent or apodosis.
The contention of the defendant is either
(A) a NEaaTION of the alleged right of the plaintiff, or
(B) an affirmation of a coLLIDING, countervailing right of the
defendant whereby the alleged right of the plaintiff is counterpoised
and counteracted.
The denial of the plaintiff's right again admite of division :
1. It is either & simple and absolute negation of the plaintiff's
right: an assertion of its non-existence even in the past: an
affirmation of ite original nullity ; or
a. A qualified or relative negation. Admitting or assuming that
it once existed, it is a negation of its present existence : an affirma-
tion of its subsequent destruction, nullification, or avoidance.
Accordingly a defendant had three lines of defence :
I. The assertion of the original NULLITY of the plaintiff's
right.
This might be either a denial (traverse) of the fact, whether a
670 DE ACTIONIBUS. [1v. §§ 115-137.
disposition or a trespass, on which the plaintiff’s nght was alleged
to be founded (general issue of English law).
Or the denial of the law by which such a right was said to be
annexed to such a fact (demurrer of English law). The question
whether in the formulary system a pure issue of law was decided
by the praetor in jure (denegatio actionis, when the demurrer was
sustained ; datio actionis, when it was overruled) without reference
to a judex, is immaterial to our present purpose, which is merely
an exhaustive view of the various modes of defence open to a
defendant.
Or it might be an admission of the fact alleged with an allegation
of a further fact whereby the efficacy of the admitted fact to found
a right was avoided. E.g. the averment of the infancy or lunacy
of a party to a disposition (confession and avoidance of English
law, producing a plea in justification).
II. The averment of a subsequent nullification or EXTINCTION of
the plaintiff’s right, admitted to have previously existed (confession
and avoidance, i. e. confession not only of a fact, as above, but of a
right, with an averment of its subsequent abolition, producing a plea
in discharge) e. g. the averment of solutio, acceptilatio, novatio.
III. The objection of a colliding right of the defendant, whereby
the right of the plaintiff is not avoided or extinguished but
counterworked or restrained from operation: e.g. resistance to
an alleged right of & father-in-law by putting forward & counter
right of a husband : or arrest of the exercise of the father's nghts
by confronting them with those of the mother (confession of a
fact or right and, not avoidance but, couNTERACTION). This third
mode of defence is called Exceptio. Accordingly exceptio may be
rendered a Counteractive or obstructive, as opposed to a Negative
or destructive, plea.
The allegation of an exceptio does not preclude the defendant
from contesting the intentio: Non utique existimatur confiteri de
intentione adversarius, quocum agitur, qui exceptione utitur, Dig.
44, 1, 9, and the intentio must be proved by the plaintiff before
the defendant is called upon to prove the exceptio, Cod. 8, 85, 9:
so that, instead of confession and counteraction, the exception
should be described as a supposition or assumption and counter-
action, of the plaintiff's right.
I. Examples of the first line of defence are, in a real action, the
negation of the traditio on which a plaintiff founds his claim of
1v. $$ 115-137.] NULLITY. 571
/
dominion: in a personal action, negation of the contract or tort
on which the plaintiff founds his claim of obligation: in either
real or personal action, avoidance of the title alleged by the plaintiff
by allegation of the infancy or lunacy of an alienor or contractor.
In hereditatis petitio, the original nullity of a will is pleaded, or
the plaintiff’s testamentary title is avoided, by averment of the
preterition by the testator of a suus heres. A title by contract is
avoided by indicating a limitation in respect of time or place or
condition or alternative.
In general the grounds of the original nullity of a disposition
are either :
(a) Want of the conditions necessary to its validity, whether
from absence of the personal qualities required in the disposer, or
from absence of the intention which is of the essence of a dis-
position, or of any other of the essentialia negotii, or from absence
of the prescribed form in which an intention is required to be
declared.
(6) Or prohibition of the disposition by positive law.
The antagonism of the legislator to a kind of disposition expressed
itself in various ways:
(1) He imposed diffieult or inconvenient forms as conditions of
ite validity. Such a requirement is perhaps what Ulpian, 1, 1, deno-
minates an imperfecta lex: it is exemplified by lex Cincia.
(2) He prohibited a disposition but, instead of declaring it invalid,
imposed a penalty on the person by whom it was enforced. This
was the method of lex Furia testamentaria, which Ulpian quotes as
an example of minus quam perfecta lex, 2 $ 225, comm.
(3) He prohibited a disposition but only struck it with a partial
Invalidity: he allowed it to create a valid right, but made such
right subject to be deprived of its efficacy by Exceptio. Such an
exceptio might be of the weaker class, only barring obligatio civilis,
e. g. exceptio Se. Macedoniani 8 $6 90-91 comm. ; or of the stronger
class, barring both civilis and naturalis obligatio; e. g. exceptio Se.
Velleiani, 8 §§.110-127 comm.
(4) He declared the prohibited disposition to be entirely invalid.
Such an ordinance is called by Ulpian perfecta lex, and is exem-
plified in lex Falcidia, 2 § 227.
Informality, e.g. exheredation by preterition, donation without
record (insinuatio) produces Nullifieation. This was an almost
universal rule, the only instance to the contrary being the lex
572 DE ACTIONIBUS. [1v. $$ 115-137.
Cincia, a neglect of whose forms founded exceptio instead of nul-
lification.
The second of these paths of prohibition ceased to be trodden
after an interpretative law of Theodosius II. A law prohibiting
municipal senators (curiales) from the management (procuratio) of
other persons’ estates had been evaded by means of simulated
leases (conductio). In consequence of this, Theodosius enacted, in
substance, that any prohibitive law, even though it contained
no express terms of nullification, should be interpreted to be lex
perfecta; and that any simulated dispositions, whereby a law was
attempted to be evaded, should be null and void: Nullum con-
tractum inter eos videri volumus subsecutum qui contrahunt, lege
contrahere prohibente ...Sed et si quid fuerit subsecutum ex eo
vel ob id quod interdicente lege factum est illud quoque cassum
atque inutile esse praecipimus, Cod. 1, 14, 5, 81. So in English law
a contract is by implication forbidden and void, when a statute,
without saying that the contract shall be void, inflicts a penalty
on the maker; for a penalty implies a prohibition. Smith, Mer-
cantile Law, p. 522. This rule will not apply where a statute has
expressly provided some other consequence inconsistent with the
nullity of the disposition. E.g. the Se. Macedonianum and Sc.
Velleianum render the dispositions which contravene them liable
to Exceptio, which is inconsistent with nullification.
2. Examples of the second line of defence are in real action
the averment of a subsequent loss of dominion by dereliction or
usucapion or alienation, or loss of servitus by non-usus: in here-
ditatis petitio the avoidance of a valid will by agnatio postumi or
by the execution of a later will: in personal action the extinction
of a debt by solutio, acceptilatio (formal release), novatio.
In general, the avoidance of a right may either be produced by
the very disposition by which the right is originated, viz. by the
fulfilment of a resolutive condition which it contains: or by some-
thing external, e. g. adjudication, when res judicata operates not as
a counteractive but as an extinctive plea, 8 § 180: or by a con-
trary disposition, e.g. dereliction of property, repudiation of the
delatio of legatum or hereditas. In respect of contrary dispo-
sitions the general rule obtains that to produce complete invalidity
the second disposition must be of similar form to the first; other-
wise it only produces incomplete invalidity (exceptio, a counteractive
plea): Nihil tam naturale est, quam eo genere quidque dissolvere,
1v. § 115-137. ] EXTINCTION. 573
quo colligatum est: ideo verborum obligatio verbis tollitur: nudi
consensus obligatio contrario consensu dissolvitur, Dig. 50, 17, 35.
Thus, a stipulation is extinguished by a formal release (accepti-
latio) but only counteracted by an informal release (pactum de
non petendo). Furtum and injuria were extinguished by nudum
pactum, in spite of the dissimilanty of disposition and tort: offence
and reconciliation, as Kuntze observes, § 632, being regarded as
contraries. Quaedam actiones per pactum ipso jure tolluntur, ut
injuriarum item furti, Dig. 2, 14, 17, 1. An informal release
followed by an informal revocation (pactum de petendo) is not
extinguished but only counteracted, 1 $ 126, and Dig. 2, 14, 27, 2.
Let us consider what is the effect when a valid disposition is
followed not by a contrary disposition but by some other circum-
stance of an adverse or inconsistent character. Some jurists laid
down a rule that original valid dispositions, if followed by a
change of circumstances to a state in which such a disposition
could not have had a valid inception, are thereby invalidated :
Etiam ea quae recte constiterunt, resolvi putant, cum in eum
casum reciderunt, a quo non potuissent consistere, Dig. 45, 1, 98,
pr. E.g. marriage was dissolved when one of the parties subse-
quently lost civitas or libertas. But there are exceptions to the
rule: Non est novum ut quae semel utiliter constituta sunt, durent,
licet ille casus extiterit, a quo initium capere non potuerunt, Dig.
45, 1, 140, 2. Exstingui obligationem, si in eum casum inciderit,
& quo incipere non potest, non...in omnibus verum est, Inst. 2,
20,14. E.g. marriage is not dissolved by the lunacy of one of the
parties. Similarly a testament loses its validity when a testator
loses civitas or libertas, but not when he becomes a lunatic. It
seems then that no general rule can be applied.
A change in the opposite direction, i.e. from circumstances in-
consistent, to circumstances consistent, with a disposition, will not,
as a general rule, validate the disposition, or produce what is called
convalescence: Quod initio vitiosum est, non potest tractu tem-
poris convalescere, Dig. 50, 17, 29. Omnia, quae ex testamento
proficiscuntur, ita statum eventus capiunt, si initium quoque sine
vitio ceperint, Dig. 50, 17, 201. Regula Catoniana sic definit,
quod, si testamenti facti tempore decessisset testator, inutile foret,
id legatum, quandocunque decesserit, non valere, Dig. 84, 7, 1, pr.
But though this applied to legacies, it was not true of institutions
of a successor (hereditas), ib. 8, nor of all other dispositions. E.g.
574 DE ACTIONIBUS. [rv. $$ 115-137.
when a non-proprietor alienes and subsequently becomes proprietor,
the alienation, originally invalid, convalesces, and the purchaser
becomes proprietor without a new tradition, Dig. 41, 8, 42.
The removal of an exception, e.g. the voluntary ratification of
a contract that was originally vitiated by force or fraud, has prac-
tically the same effects as convalescence ; but cannot properly be
called convalescence, because here the disposition is not originally
null and void, but only liable to counteraction. Accordingly in
such a case the plaintiff's right would require to be enforced by
Replicatio.
3. Exceptions or counteractive pleas, which are the defendant's
third means of defence, are either based on the substantive code or
on the code of procedure.
(a) Examples of exceptions based on the code of procedure are :
exception to the jurisdiction of the court (exceptio fori incompe-
tentis): the objection to a minor issue being tried, while a con-
nected major issue from which it cannot be separated is undecided
(exceptio praejudicialis): objection to the appointment of this pro-
curator by the plaintiff (exceptio cognitoria, procuratoria).
(6) Examples of exceptions based on the material code are :
In the department of domestic or family law, the exception pro-
tecting maternal rights against paternal; i.e. protecting the right
of a mother to educate her infant children against her husband who
seeks by the interdict de liberis exhibendis or ducendis to enforce
the prerogatives of patria potestas, Dig. 48, 80, 8, 5 : or protecting
marital rights against paternal rights ; 1. e. protecting the right of
the husband to the society of the wife against her father who
endeavours by exercising his patria potestas to break up a united
household, Dig. 48, 80, 1, 5.
In the department of reallaw the defendant in a vindicatio by
putting forward the exceptio rei venditae et traditae may counter-
poise the plaintiff's quiritary right by objecting his own bonitary
right, Dig. 21, 8, 1, 2: or he may allege as a counteracting right
against the plaintiff's dominion a jus in re, e.g. pignus, Dig. 10,
3, 6, 9, or superficies, Dig. 48, 18, 1, 4. In the actio Publiciana
when the purchaser from a non-proprietor endeavours to recover
the thing from the true proprietor, the defendant may oppose
ownership to bona fide acquisition of possession by putting forward
the exceptio dominii: Si ea res possessoris non sit, Dig. 6, 2, 17,
said to be the only exception which in form alleges a right of the
1v. $$ 115-137.] COUNTERACTION. 575
defendant, whereas all other exceptions, though they too are all
virtually and in effect allegations of & right, in external form are
allegations of a fact. Cf. 2 §§ 40-61 comm.
In the department of obligation the defendant's counteractive
plea may be an allegation of Force or Error or Formless release.
Force and Error, as we have seen, p. 22, do not deprive a disposi-
lion of validity, but produce an independent right of redress.
Although Exceptio is always the allegation of a right of the
defendant, the right which it alleges, though in other respects of
the same nature as the right of a plaintiff, is not always sufficiently
energetic to form & greund on which an action might be main-
tained. We have an instance of this inferior energy in the obli-
gatio naturalis which is generated by nudum pactum, of which
we read: Igitur nuda pactio obligationem non parit sed parit
exceptionem, Dig. 2, 14, 7, 4.
The collision of the rights of the plaintiff and defendant, as ex-
pressed in the intentio and exceptio arises in the majority of cases
from the opposition of equity (aequitas) to law, jus strictum, or of
jus praetorium to jus civile.
Instances of exceptio founded on jus praetorium are: Exceptio
doli, metus, pacti conventi, $ 116, hypothecaria, Jurisjurandi.
It is, however, erroneous to suppose, as was done in the first
edition, that, anomalies disregarded, exceptio is always a plea based
on the equitable or praetorian code. This is contrary to the state-
ment of Gaius, § 118, that exceptio is often based on jus civile, and
refuted by the following examples of exceptions based on civil law :
exceptio dominii, the allegation of civil dominion by the true
proprietor who is defendant in an actio publiciana brought by a
purchaser from a non-proprietor: exceptio legis Plaetoriae, the al-
legation of minority. [The lex Plaetoria did not make minors
incapable of contracting, but treated their inexperience as a ground
for extraordinary relief: otherwise minority, like infancy, would have
made a contract null and void, and its averment would not have fallen
as an exceptio under the third mode of defence, but, as à negation,
under the first, like the averment of infancy, 1 $$ 197—200 comm. | :
exceptio legis Cinciae, Frag. Vat. 266, 310, protecting a donor:
exceptio legis Juliae, Inst. 4, 14, 4, protecting an insolvent who has
made cessio bonorum : exceptio Sc. Macedoniani, protecting filius-
familias against usurers: exceptio Sc. Velleiani, protecting women
from the consequences of intercessio ; exceptio Sc. Trebelliani, pro-
576 DE ACTIONIBUS. [1v. $$ 115-137.
tecting an heir who is merely a trustee to convey the inheritance
to a beneficiary from the pursuit of the creditors, Dig. 15, 2, 1, 8, see
2 § 258.
Let us examine the meaning of ipsum jus as it occurs in the
opposition of actio ipso jure nulla (a right avoided by a destructive
plea) and actio ope exceptionis infirmata (a right counteracted by
an obstructive plea) or other equivalent expressions.
Ipsum jus sometimes denotes jus civile as opposed to jus prae-
torium, e.g. in the phrase actiones quae in aliquem aut ipeo jure
competunt aut a praetore dantur, 4 $ 112: but this cannot be ite
signification here; for the opposition between destruction and
obstruction, avoidance and counteraction, is irrespective of the
opposition between jus civile and jus praetorium. In a case of
avoidance, the plaintiff's claim may be derived not from jus civile
but from jus praetorium, e.g. in actio constitutoria, § 71 comm.,
hypothecaria, publiciana : and in a case of counteraction the defend-
ant’s plea, as we have seen, may be derived not from aequitas
but from jus civile.
Ipsum jus as contrasted with exceptio denotes the totality of
the conditions comprehended in the intentio—the totality of the
elements, positive and negative, that constitute the plaintiff's right :
in which definition positive elements are the conditions which call
a right into existence; negative elements are the absence of any
circumstance which could extinguish an existent right or dismiss it
into non-existence. Exceptio on the contrary denotes something
external to the sphere of the conditions of existence of the plaintiff’s
right; denotes the existence of an independent adverse nght of
the defendant. Actio ipso jure nulla will denote a right null and
void by the conditions contemplated in the intentio and commonly
expressed by the word oportere: actio exceptionis ope infirmata a
right defeated by conditions external to the intentio. The words:
ipso jure, then, might be paraphrased by the words: si intentionem
tentum spectes; or treated as equivalent to: ipsius jure or actoris jure.
The first mode of defence mentioned above denies the existence of
one of the positive constituent elements of the plaintiff's right.
The second mode denies the existence of one of the negative
constituent elements of the plaintiff's right.
The third mode alleges a second right, vested in a different
person, and generated by a title external to the sphere of the
conditions which constitute the right of the plaintiff.
rv. $$ 115-137.] NEGATION, COUNTERACTION. 577
In some cases the partition which separates avoidance from
counteraction will be extremely thin, and will consist in some
arbitrary appointment of positive law. E.g. litis contestatio in
judicium legitimum produced avoidance, while litis contestatio in
judicium imperio continens only produced counteraction, 8 § 181.
Some extinctions (ipso jure) of a plaintiff's right, where we might
have expected only counterpoises (ope exceptionis) or counter rights
of a defendant, are to be explained by the fact that there was a
period when Roman procedure did not recognize Exceptions—
defences by positive averment of counterpoising rights — (nec
omnino ita ut nunc usus erat illis temporibus exceptionum, $ 108);
but required every defence to be in the form of a simple NEGa-
TION—allegation of the original or subsequent wurLiTY of the
plaintiff's claim. Unlike proceedings by Formula, which extended
to the stage of Condemnatio, and besides the ipsum jus of the
plaintiff, investigated the counter-claims (Exceptio) of the defend-
ant; statute-process confined itself to Pronuntiatio on the plaintiff's
right. At such a period one of the devices for giving to the
defendant the means of defence which he afterwards had in the
form of Exceptio was the introduction into the Substantive code
of certain principles respecting the nullification of nghts which
practically answered the purpose of the Exceptions afterwards in-
troduced into the Adjective code.
An example of such principles is the rule: Impensae necessariae
dotem ipso jure minuunt, Dig. 28, 4, 5, 2. A husband when com-
pelled to restore the dower to a divorced wife was fairly entitled
io deduct what he had been obliged to spend for its conservation
during the subsistence of matrimony. To enable the husband to
do this the law EXTINGUISHED the wife's right to an equivalent
portion of the dower, and thus protected the husband as effectually
as if it had given him an Exceptio asserting an independent right
of retention. So the rule: Legata pro rata portione per legem
ipso jure minuuntur, Dig. 35, 2, 78, 5, gave to an heir the right of
retaining his Falcidian fourth as effectually as he could have done
by pleading an Exceptio legis Falcidiae. Again the rule: Ipso
jore minutum esse peculium, Dig. 19. 1, 80, pr., gave to an heir,
when a slave and his peculium had been bequeathed to a legatee,
the right of deducting whatever the slave owed by naturalis
obligatio to the testator as effectually as if he had been allowed to
plead the debt of the slave in an Exceptio.
Pp
578 DE ACTIONIBUS. [xv. $$ 115-137.
It is remarkable that a husband's right, § 44 comm., to deduct
from the dower all wtzes as opposed to wecessariae impensae was
protected by an Exceptio, Dig. 25, 1, 7,1. As there seems to be no
valid reason for a different treatment of utiles impensae and neces-
sariae impensae, the explanation why the deduction of necessariae
was effectuated by Extinction and that of utiles by Exception can
only be found in the hypothesis that the former right was recognized
by the lawgiver before, the latter after, Exceptions had been intro-
duced into the Adjective code. Ihering, § 52.
These phenomena may incline us to suppose that an enactment
of Justinian, which commentators have been much embarrassed to
explain, that Compensation should operate by Extinction (ipso jure,
Cod. 4, 31, 14, Inst. 4, 6, 80), when Exception (here assuredly the
natural mode of expressing the true facts of the case) would have
answered exactly the same purpose, was a mere anachronism. Jus-
tinian intended to assimilate Compensation to the deductions from
Dos, Legatum, Peculium : but overlooked the fact that in those
cases the method of Extinction was employed by the lawgiver
instead of Exception, merely because, when those deductions were
first authorized, Exception was unknown to jurisprudence,
Exceptions are capable of various classifications.
As a Negation of the plaintiff's right forms either what we have
called the first mode of defence or the second, according as it is
founded on a fact contemporaneous or subsequent to the plaintiff's
title, so Exceptions rest on facts either contemporaneous or sub-
sequent to those which found the claim of the plaintiff. Examples
of contemporaneous exceptions are exceptio doli, exceptio metus,
averring that a disposition on which the plaintiff relies was originally
vitiated by force or fraud. Examples of subsequent exceptions are
the exceptions rei judicatae, longi temporis possessionis, pacti con-
venti de non petendo. In a Negative averment the subsequent
event is ground of avoidance ; in an exception the subsequent event
is ground of counteraction.
Some exceptions can only be employed by a particular defendant
(exceptio personae cohaerens): an example of this is beneficium
competentiae, which cannot be pleaded by a debtor's sureties or
successors. Others, and the great majority, are available to all de-
fendants without distinction (exceptio rei cohaerens).
Some exceptions are only available against a particular plaintiff
(exceptio in personam). E.g. the exceptio doli, Si in ea re nihil
1v. § 115-137. ] BURDEN OF PROOF. 579
dolo malo actoris factum est, only lies against the person by whose
fraud a disposition was vitiated, his donees and universal successors ;
not against a vendee or singular successor. ‘The majority are
equally available against all the world (exceptio in rem); e. g. the
exceptio metus, which is expressed impersonally, Si in ea re nihil
metus causa factum est, and lies against all whose title depends on
the vitiated disposition.
The counteraction of the plaintiff’s right by exceptio has different
degrees of potency. Some.exceptions have the stronger effect and
deprive the plaintiff’s right of all efficacy, barring all obligatio both
naturalis and civilis: others have the weaker effect, and though
they deprive the plaintiff's nght of obligatio civilis, leave it in-
vested with obligatio naturalis. Instances of the weaker effect are
the exceptio Sc. Macedoniani, Dig. 14, 6, 10, and beneficium com-
petentiae, Dig. 12, 6,8, 9. Instances of the stronger effect are
exceptio Sc. Velleiani, Dig. 12, 6, 40, pr., exceptio doli, Dig. 12, 6,
65, 1, exceptio metus, Dig. 12, 5, 7, exceptio pacti, Dig. 12, 6, 40, 2.
The effect of the exceptions of res judicata and prescription or lapse
of time, as we have already stated, is controverted : but they both
apparently have the stronger operation, except that in real actions
prescription does not exclude the jus naturale of the proprietor, and
prescription of pendency, §§ 104, 105, leaves a debtor subject to
naturalis obligatio.
In respect of the burden of proof (onus, necessitas probationis)
the following are the leading rules:
The party who asserts & right must prove it, whether the title
by which it was conferred is an affirmative or negative fact: Ei
incumbit probatio qui dieit non qui negat, Dig. 22, 8, 2. Hence
the plaintiff, as a general rule, must prove the intentio: Semper
necessitas probandi incumbit illi qui agit, Dig. 22, 8, 21: Actore
non probante, qui convenitur, etsi nihil ipse praestat, obtinebit,
Cod. 2, 1, 4: and the defendant must prove the exceptio: In
exceptionibus dicendum est reum partibus actoris fungi oportere,
ipsumque exceptionem velut intentionem implere, Dig. 22, 3,
19, pr.
But, further, in the second line of defence the proof of the
matter alleged in avoidance is incumbent on the defendant: ut
creditor, qui pecuniam petit numeratam, implere cogitur, ita rursum
debitor, qui solutam affirmat, ejus rei probationem praestare debet,
Cod. 4, 19, 1. In a passage of the Digest this rule is combined
Pp2
580 DE ACTIONIBUS. ~ [rv. $$ 115-137.
with the preceding: Secundum generalem regulam, quae eos qui
opponendas esse exceptiones adfirmant, vel solvisse debita conten-
dunt, haee ostendere exigit, Dig. 22, 3, 25, 2.
Moreover in the first line of defence, when it assumes the form
of a confession and avoidance; e.g. an averment of the lunacy of
a, testator; in other words, when it is contended that a disposition,
in consequence of some exceptional circumstance, had not the vali-
dity which the law presumes; the proof of this avoiding allega-
tion is on the defendant, Cod. 6, 36, 5. Bethmann-Hollweg,
$ 109.
In the middle ages the true exceptio or counteractive plea was
called exceptio juris: the first line of defence, when it assumed
the form of an avoidance, and the second line of defence, what-
ever its special nature, were called inappropriately exceptio facti.
This shows that the true nature of exceptio had been forgotten :
the similarity, however, of the three lines of defence in respect
of the burden of proof is probably the reason why they were all
called exceptio.
The necessity of disclosing by the pleadings whether the de-
fendant relies on the first or second line of defence, e. g. whether
he denies that a debt ever existed, or maintains that it was ex-
tinguished, in order to save the plaintiff from being taken by
surprise (for which disclosure there was no provision in pro-
cedure by formula), is probably the reason why the second line of
defence as well as the third is treated as an exceptio in modern
Germany.
The distinction between counteraetive and destructive pleas
does not seem to have had much influence on English pleading.
. Stephens in his Commentaries, V. 10, admits that all pleas are not
necessarily either traverses or pleas in avoidance; and, as an in-
stance of a plea that falls under neither class, mentions pleas by
way of estoppel. One species of estoppel, estoppel by record, is
the Roman exceptio rei judicatae: so that here we find recognized
a third class of plea under which we might have expected that
other averments analogous to other Roman exceptions would be
ranged. We find, however, the pleas of the statute of limitations
(preseription) and of set-off (compensatio) given as instances of
pleas in discharge, i.e. of what we have called the second line of
defence, or pleas in avoidance. [For the general theory of Exceptio,
see Savigny, $6 202, 208, 226-229.]
rv. $$ 115-137,] METUS, DOLUS. 581
I proceed to notice some of the points incidentally mentioned by
Gaius.
The denial by a defendant that he had received money from a
plaintiff would not, in an actio Mutui, appear on the face of the
formula: as a simple Negation of the plaintiff's right, it would fall
under the first line of defence. It would only assume the form
of Exceptio doli, $ 116, in an action brought on a Stipulation.
Here the promise of the defendant to repay would establish a
right of the plaintiff: but the absence of a previous payment
by the plaintiff would give the defendant & countervailing right,
to be alleged in an exceptio doli, which as in other cases of ex-
ception he would have to prove. It was, however, a usual practice,
in the time of the classical jurists and subsequently, for a borrower
of money, whether under a contract of stipulation or an informal
contract, to give the lender a written document, called cautio, as
an acknowledgment of his having received it. A defendant, who
had given such an acknowledgment without having in fact received
the money would defend himself in all cases by the exceptio doli or
exceptio non numeratae pecuniae, as it came to be called. It was
provided by a Constitution of the Emperors Severus and Antoninus
that if an action was brought on such a cautio, and the exceptio
non numeratae pecuniae was pleaded in defence, the burden of
proving that the money, which was claimed, had been paid should
be on the plaintiff instead of being as in other cases of exception
on the defendant, Cod. 4, 30, 8. But the rule was established that
if the person who had given the cautio allowed a certain period to
elapse from the time when it was given, the acknowledgment
should be considered presumptive evidence of the money having
been received. The period was first fixed at one year, then ex-
tended by Diocletian to five years, and finally reduced by Jus-
tinian to two, Cod. 4, 30, 14. Cf. Inst. 8, 21, and see 3 §§ 97-
109, Comm.
§ 117. Intimidation (metus) was ground to support not only
an exception, but also an action and an in integrum restitutio.
The words of the edict: Quod metus causa gestum erit ratum non
habebo, Dig. 4, 2, 1, * Duress shall be a ground for rescinding any
disposition,' are in rem scripta or impersonal: they do not specify
the intimidator, but promise a remedy even against innocent
persons who may have come into possession of property in con-
sequence of an intimidation. The actio quod metus causa was
582 DE ACTIONIBUS. (rv. $$ 115—137.
an actio arbitraria, $ 47, and during one year was bilaterally penal
and lay for fourfold damages: after that it only lay for simple
damages and was purely conservative or restorative. The formula
may be thus restored: Si paret metus causa factum esse ut Aulus
Agerius fundum illum illi manciparet, judex nisi arbitratu tuo
Numerius Negidius Aulo -Agerio rem restituet, quanti ea res erit
tantae pecuniae quadruplum Numerium Negidium Aulo Agerio
condemnato: Si non paret absolvito. Bethmann-Hollweg, $ 96,
note 77. It was a personal action, and therefore in case of the
defendant's insolvency was not an adequate remedy, as the plaintiff
then would only share the assets with the other creditors of the
defendant. To enable the plaintiff to bring a real action it would
be necessary for him to obtain from the praetor the extraordinary
relief of in integrum restitutio, & rescission of the forced alienation.
He then might bring a vindicatio, which would separate his pro-
perty from the assets-of the defendant over which other creditors
had a claim, 8 $$ 77-81, Comm.
Dolus, like metus, gave rise to an exceptio, $ 117, an actio
arbitraria and in integrum restitutio. The action quod dolo malo
factum est, if brought to recover the whole amount of loss
incurred by fraud being unilaterally penal, or penal in respect of
the defendant, originally was prescribed in a year. Constantine,
A.D. 819, extended the .period of prescription to two calendar
years, biennium continuum, Cod. 2, 21, 8. After that period the
plaintiff had only à non-penal actio in factum for damages to the
amount that the defendant had gained by the fraud.
$119. In the exceptio doli the words: Si in ea re nihil dolo
malo Auli Agerii factum sit, allege dolus praeteritus, i.e. assert
that the right of the plaintiff was vitiated in its origin: the words:
neque fiat, allege dolus praesens, i.e. assert that the right of the
plaintiff, though originally clear of dolus, is now in collision with
a right of the defendant, e.g. compensatio. Dolo facit quicunque
id quod quaqua exceptione elidi potest petit: nam etsi inter initia
nihil dolo malo fecit, attamen nunc petendo facit dolose, Dig. 44,
4, 2, 5.
Any exception of fraud might be transformed into an exceptio in
factum, and vice versa. The exception of fraud, being discredit-
able to the plaintiff, could not be alleged against a parent or
patron, but had to be converted into an exception of fact, Dig. 44,
4, 4, 16. So if a neighbour out of humanity enabled a slave to
1v. $$ 115-137.] RES LITIGIOSA. 583
escape from the cruelty of his master, he was liable to an action in
factum concepta, not doli. D. 4, 8, 7, 6.
Bona fides implies the absence of dolus: so far then as the
exceptio merely empowered the judex to take into consideration
equitable grounds of defence, no exceptio doli was necessary in
actions ex bona fide, for here the commission of the judex expressly
authorized him in the intentio of the formula to decide upon equit-
able grounds (ex bona fide): Judicium bonae fidei continet in se
doli mali exceptionem, Dig. 80, 1, 84, 5: Doli exceptio inest de
dote actioni, ut in ceteris bonae fidei judiciis, Dig. 24, 8, 21. This,
however, does not apply to the exceptio rei judicatae and others
like exceptio cognitoria and litis dividuae, which are founded
rather on political than on equitable considerations, and had to
be expressed in the formula, if they formed the defence of the
defendant, even in actions ex bona fide. So a set-off (compensatio)
of an independent debt was required to be announced in an exceptio.
Cieero gives the form of exceptio doli contained in the edictum
Asiaticum of Q. Mucius: Extraquam si ita negotium gestum est
ut eo stari non oporteat ex fide bona, Ad Att. 6, 1, *unless the
circumstances of the disposition make ite enforcement inconsistent
with the principles of good faith. This seems to be impersonally
framed, but the formula, as stated, may be incomplete.
The exceptio doli from the comprehensiveness of its meaning,
does not sufficiently disclose the line of defence which a defendant
intends to pursue: accordingly, in Germany, the fact which consti-
tutes the dolus is always required to be specified.
Property became litigious (res litigiosa, § 117) as soon as it was
the subject of litis contestatio. Originally it was only the plain-
tiff (non-possessor) who was prohibited from alienation. An edict
of Augustus prohibited the alienation of litigated Italic land by
a non-possessing plaintiff in terms which explain why an exceptio
was necessary in order to repel the claims of the alienee. Qui
eontra edictum divi Augusti rem litigiosam a non possidente com-
paravit, praeter quam quod emptio nullius momenti est, poenam
quinquaginta sestertiorum fisco repraesentare compellitur: sed hoc
in provincialibus fundis prava usurpatione obtinuit. Fragmentum
de jure fisci. ‘If, in contravention of the edict of Augustus, a
subject of litigation is purchased of a vendor not in possession,
the sale is void and the purchaser forfeits fifty sestertia to the
treasury. The edict is inapplicable to provincial soil.’ Italic soil
584 DE ACTIONIBUS. [rv. $$ 115-137.
was aliened by mancipatio, 2 § 27; and mancipation of land was
perfect without delivery of possession, 1 § 121. The edict only
declared the sale (emptio) void, not the mancipatio. To defeat,
therefore, the vindicatio of the purchaser, the possessor (defendant
in the original suit) required the protection of an exceptio.
Alienation by a defendant im possession appears not to have been
prohibited, because, the condemnatio in any suit being pecuniaria,
it was held that the defendant could not injure the plaintiff by
alienation of the specific thing.
At a later period, when execution in a suit consisted in the
delivery of the specific thing, alienation by a defendant was re-
eognised as an injury to the plaintiff. Accordingly Justinian's
eode, 8, 37, 2, not only avoided every alienation by a plaintiff of
the dominion or obligation that he claims, but also alienation by
a possessing defendant in a vindicatio, Cod. 8, 836, 5, Nov. 112, 1.
If the purchaser had notice of the litigiosity, he forfeits the
purchase money to the fiscus, and the vendor forfeits an equal
sum. If the purchaser was without notice, he recovers his pur-
chase money and one-third additional from the vendor, who further
forfeits two-thirds to the treasury. Vangerow, $ 160.
Compare the prohibition of Champerty and Maintenance in
English law. Champerty is buying or selling a disputed title to
land not in possession of the seller. Whether the title of the vendor
be bad or good, if the land is held adversely to him, such a sale is
void. Choses in possession (movables) and choses in action (obliga-
tions) may be sold after the institution of a suit, unless the assign-
ment savour of Maintenance, i.e. be made with the design of
fomenting litigation.
§ 120. Justinian, Inst. 4, 18, 8, uses the term temporalis as equi-
valent to dilatoria, but then an ambiguity arises: for temporalis
exceptio sometimes denotes the plea of prescription (longi temporis
exceptio), e. g. Cod. 5, 12, 80, 52: and the plea of prescription is
perpetua, i. e. non-temporalis.
§ 123. The statement of Gaius, that a dilatory exception, if sus-
tained, was fatal to the claim of the plaintiff, as his right of action
was consumed, can scarcely have been true of exceptio fori, and
exceptio praejudicialis. When a court is incompetent to try a cause
or postpones the trial, the instructions to the judge : Si non paret,
absolve, are inapplicable. The cause is not heard, and the right of
&ction cannot have been consumed when it has never been exercised.
tv. §§ 115-137,] REPLICATION. 585
In the legislation of Justinian, no dilatory exception was a bar
to a subsequent institution of a suit. Savigny, § 227.
§ 124. The disability of an infamous person (infamis) to create a
procurator or to discharge the office of procurator was abolished by
Justinian, Inst. 4, 18, 11.
§ 126. The following instances of Replicatio may be found in
the Digest. A general agent could not be sued by another agent
without express authority. A plaintiff who has such authority will
meet the exceptio of the defendant, alleging general agency, by a
replicatio alleging special instructions to sue the defendant: Aut
si mihi mandatum est ut a te peterem, Dig. 8, 8, 48.
If a woman acting as guarantor in contravention of Sc. Vellei-
anum sell and deliver her land to the creditor, she can recover it
back by a real action; and meet the exceptio alleging sale and
delivery by a replicatio alleging the contravention of Sc. Vellei-
anum: Aut si ea venditio contra senatusconsultum facta sit, Dig.
16, 1, 32, 2.
Another text observes that an equality of fraud on the part
of plaintiff and defendant is more adverse to the plaintiff than
to the defendant, because an exceptio of the defendant alleging
fraud on the part of the plaintiff is not allowed to be met by
a replicatio of the latter alleging fraud on the part of the de-
fendant: Aut si rei quoque in ea re dolo actum sit, Dig. 50,
17, 154.
The Replicatio, then, if we trust these examples, was a proposition
beginning with the words Aut si: and, if this was universal, we
must suppose that the expression of Gaius, Si non postea convenerit
ut eam pecuniam petere liceret, § 126, only gives the substance of
the replicatio, not the precise terms in which it was introduced by
the praetor into the formula.
Ulpian, Dig. 44, 1, 2, 8, and Julian, Dig. 27, 10, 7, 1, 2, differ
from Gaius in the use of the words Duplicatio and Triplicatio.
They identify Duplicatio with Replicatio; and consequently use
Triplicatio to signify an averment which Gaius would call Dupli-
catio.
§ 180. The Praescriptio in favour of the plaintiff became obsolete
as soon as the old doctrine respecting litis consumptio was abrogated
and superseded by more rational rules respecting the operation of
Res judicata, §§ 110-118, Comm. In the Digest praescriptio has
become a mere synonym of exceptio.
586 DE ACTIONIBUS. [rv. $$ 115-137.
$181. In connection with the praescriptio: Ea res agatur cujus
rei dies fuit, we may quote an anecdote which Cicero pute into the
mouth of Crassus in illustration of the gross ignorance occasionally
displayed by the Roman advocate : Quid ? his paucis diebus nonne,
nobis in tribunali Q. Pompeii praetoris urbani familiaris nostri seden-
tibus, homo ex numero disertorum postulabat ut illi unde peteretur
vetus atque usitata exceptio daretur, CUJUS PECUNIAE DIES FUISSET ?
quod petitoris causa comparatum esse non intelligebat : ut [ne ?] si
‘ule infitiator probasset judici ante petitam esse pecuniam quam esset
coepta deberi, petitor rursum quum peteret exceptione excluderetur,
QUOD EA RES IN JUDICIUM ANTEA VENISSET, De Oratore, 1. 37. ‘A
few days ago when I was sitting as assessor of the praetor urbanus,
the defendants advocate pressed the praetor to insert in the formula
the old and common exception: IN EXCLUSIVE RESPECT OF THE PAY-
MENT ALREADY DUE, not knowing that it only protected the plaintiff,
saving him, if his demand was proved to be premature, from being
barred in a subsequent action by the exception of PREVIOUS LITI-
GATION.'
When mancipation was the usual mode of transferring property in
immovables and was complete without delivery of possession, Ulpian,
19, 6, and when, further, the rules of litis consumptio prevailed,
a plaintiff would occasionally need the praescriptio: Ea res agatur
de fundo mancipando. At a later period transfer of possession
became the only means of transferring property, and the rules of
res in judicium deducta (lis contestata), as we have seen, underwent
a reform.
Praescriptio, in the legislation of Justinian, is sometimes equiva-
lent to Usucapio. This arose in the following manner. A pro-
prietor’s right to recover by vindicatio might at an early period
be barred by an averment of adverse possession, during ten years, if
the parties were domiciled in the same province, during twenty
years, if they were domiciled in different provinces (longi temporis
possessio). This exceptio of the defendant appeared in the formula
in the shape and under the name of a praescriptio. When, by later
legislation, longi temporis possessio accompanied with bona fides
became a title whereby property was acquired (usucapio), p. 552, it
still retained its original name of praescriptio; though, perhaps, to
avoid confusion, it would have been better to confine this term to
possession accompanied with mala fides, i.e. possession that does
not operate a transfer of ownership. The term Exceptio longi tem-
1v. $$ 138-170.] DE INTERDICTIS. 587
poris was a misnomer, because the averment of Usucapio was
not an Exceptio but a Negatio of the plaintiff's ownership, i.e.
belonged to the second line of defence. Bethmann-Hollweg,
$ 154.
§ 186. Savigny, Vol. 5, p. 617, supposes that the formula would
not contain the word incertum but the substance of the contract,
e.g. possessionem tradi. Bethmann-Hollweg only admits this in
the case of Praetorian stipulations, e. g. Damni infecti, Rem pupilli
salvam fore, judicatum solvi, Ratam rem haberi, $ 108.
The leaf containing from intentione formulae, $ 134, to aut pro
possessore, $ 144, was separated from the rest of the Veronese
codex, and seen by Scipio Maffei in 1782. It was afterwards
published by Haubold in 1816, the very year in which Niebuhr
discovered the rest of the codex.
DE INTERDICTIS.
$ 138. Superest ut de interdictis
dispiciamus.
$ 139. Certis igitur ex causis
praetor aut proconsul principaliter
auctoritatem suam finiendis contro-
uerstis inderponit. quod tum max-
ime facit, cum de possessione aut
quasi possessione inter aliquos con-
tenditur. et in summa aut iubet
aliquid fieri aut fieri prohibet.
formulae autem et werborum con-
ceptiones quibus in ea re utitur,
interdicta (—) d .
§ 140. Vocantur autem decreta,
cum fieri aliquid iubet, ueluti cum
praecipit; ut aliquid exhibeatur aut
restitustur; interdicta uero, cum
prohibet fieri, ueluti cum praecipit,
ne sine vitio possidenti uis fiat,
neue in loco sacro aliquid fiat. unde
omnia interdicta aut restitutoria
aut exhibitoria aut prohibitoria uo-
cantur.
$ 141. Nec tamen cum quid ius-
serit fieri aut fieri prohibuerit, sta-
tim peractum est, negotium, sed ad
iudicem recuperatoresue itur et ibi
$ 138. The last subject to be ex-
amined is interdicta.
$139. In certain controversies,
chiefly when possession or quasi-
possession (possession of a servi-
tude) is in dispute, the praetor or
proconsul intervenesin & paramount
or sovereign capacity und commands
some performance or forbearance;
which commands, formulated in
solemn terms, are called interdicts
and decrees.
$ 140. Decrees, when he com-
mands that something be perform-
ed; for instance, when he orders
that something be produced, or
something be restored : interdicts,
when he prohibits some act; as
when he forbids the violent dis-
turbance of an unimpeachable pos-
session, or the desecration of con-
secrated ground. Interdicts, then,
are orders either of restitution, or
of production, or of abstention.
§ 141. The order of performance
or forbearance does not end the
proceedings, but a formula is de-
livered instructing a judex or re-
588
editis formulis quaeritur, an aliquid
aduersus praetoris edictum factum
sit, uel an factum non sit, quod is
fieri iusserit. et modo cum poena
agitur, modo sine poena : cum poe-
na, ueluti cum per sponsionem agt-
tur, sine poena, ueluti cum arbiter
petitur. etquidem ex prohibitoriis
interdictis semper per sponsionem
agi solet; ex restitutoriis uero uel
exhibitoriis modo per sponsionem,
modo per formulam agitur quae ar-
bitraria uocatur.
$ 142. Principalis igitur diuisio
in eo est, quod aut prohibitoria sunt
interdicta aut restitutoria aut ex-
hibitoria.
$ 143. Sequens in eo est. diuisio,
quod uel adipiscendae possessionis
causa conparata sunt uel retinen-
dae uel reciperandae.
$ 144. Adipiscendae possessionis
causa interdictum aecommodatur
bonorum possessori, cuius princi-
pium est QVORVM BONORVM ; eius-
que uis et potestas haec est, ut quod
quisque ex his bonis quorum pos-
sessio alicui data est, pro herede aut
pro possessore possideat, id ei cui
bonorum possessio data est, resti-
tuatur. pro herede autem possidere
uidetur tam is qui heres est, quam
is qui putat se heredem esse; pro
possessore ts possidet qui sine causa
aliquam rem hereditariam uel etiam
totam hereditatem sciens ad se non
pertinere possidet. ideo autem ad-
ipiscendae possessionis uocatur (in-
terdictum), quia ei tantum utile
est qui nunc primum conatur ad-
Ipisct rei possessionem. itaque si
quis adeptus possessionem amiserit,
desinit ei id interdictum utile esse.
$ 145. Bonorum quoque emptori
similiter proponitur interdictum
quod quidam possessorium uocant.
DE ACTIONIBUS.
[1v. $$ 138-170.
cuperators to inquire whether any-
thing has been committed contrary
to the praetor’s prohibition or
omitted contrary to his injunc-
tion. Their judgment sometimes
is penal, sometimes not penal;
penal when the procedure is by
sponsio, not penal when by de-
mand of arbitration. Prohibitory
interdicts are always preliminary to
sponsio; orders of restitution or
production sometimes to sponsio,
sometimes to arbitration.
$ 142. The first division, then,
of interdicts is into orders of ab-
stention, of restitution, of produc-
tion.
$ 143. The next is into interdicts
for obtaining possession, for retain-
ing possession, for recovering pos-
session.
$144. An interdict for obtaining
possession is issued for the grantee
of possession, beginning: * What-
ever portion of the goods ;' and in-
joining, that whatever portion of
the goods, whereof possession has
been granted to the claimant, is in
the hands of one who holds as
successor (civil, praetorian, or fide-
commissary) or as mere possessor,
such portion shall be delivered to
the grantee of possession He
holds as successor who either is
successor or thinks himself suc-
cessor; he holds as mere possessor
who relies on no title but holds
a portion or the whole of the in-
heritance, knowing that he is not
entitled. 1t is called an interdict
for obtaining possession because it
is only available for initiating poe-
session, and is not granted to a
person who has already had and
lost possession.
§ 145. The execution purchaser
in insolvency | purchaser at the sale
of the goods of an insolvent debtor]
also has an interdict, which some
call possessory.
1v. §§ 138-170.]
§ 146. Item ei qui publica bona
emerit, eiusdem condicionis inter-
dictum proponitur quod appellatur
sectorium, quod sectores uocantur
qui publice bona mercantur.
$ 147. Interdictum quoque quod
appellatur Saluianum, ad£piscendae
possessionis (causa) conparatum
est, eoque utitur dominus fundi de
rebus coloni quas s pro mercedibus
fundi pignori futuras pepigisset.
$ 148. Retinendae possessionis
causa solet interdictum reddi, cum
ab utraque parte de proprietate
alicuius rei controuersia est, et ante
quaeritur, uter ex litigatoribus pos-
sidere et uter petere debeat ; cuius
rei gratia conparata sunt vTI POBBI-
DETIS et VTRVBI.
$149. Et quidem vii PossrpETIS
interdictum de fundi uel aedium
poesessione redditur, vTRVBI uero
de rerum mobilium possessione.
$150. Et siquidem de fundo uel
aedibus interdicitur, eum potiorem
esse praetor iubet, qui eo tempore
quo interdictum redditur, nec ui nec
clam nec precario ab aduersario pos-
sideat; si uero de re mobili, eum
potiorem esse iubet, qui maiore
parte eius anni nec ui nec clam nec
precario ab aduersario possedertt ;
idque satis ipsis uerbis interdicto-
rum significatur,
- $151. Sed in vrevsr interdicto
non solum sua cuique possessio pro-
dest, sed etiam alterius quam ius-
tum est ei accedere, ueluti eius cul
heres extiterit, eiusque a quo emerit
uel ex donatione aut dotis nomine
&cceperit. itaque si nostrae pos-
sessioni iuncta alterius iusta pos-
sessio exuperat aduersarii posses-
sionem, nos eo interdicto uincimus.
nullam autem propriam possessio-
DE INTERDICTIS.
589
$ 146. The purchaser of the con-
fiscated goods of a criminal has a
similar interdict, which is called
sectorium, because the purchasers
of public property are called sec-
tores.
§ 147. The interdict called Sal-
vianum is an interdict for obtaining
possession, and is available to the
landlord against the detainers of
the tenant's property which has
been hypothecated as a security for
rent.
$ 148. Interdicts for retaining
possession are granted when two
parties claim proprietorship, in or-
der to determine which shall be
plaintiff and which defendant, and
are called the interdicts: * Which-
ever party has possession, and,
* Whichever party had possession.’
$ 149. The former refers to land
&nd houses, the latter to movables.
$ 150. When the interdict relates
to land or houses, the praetor pre-
fers the party who at the issuing of
the interdict has possession unim-
peachable in respect of the adver-
sary for violence, clandestinity, or
permission. When the interdict re-
lates to a movable, he prefers the
party who in respect of the ad-
versary has possessed without vio-
lence, clandestinity, or permission,
during the greater part of the year.
The terms of the interdicts suffi-
ciently show this distinction. -
$ 151. In the interdict, * Which-
ever party possessed,' possession in-
cludes, besides the possession of the
litigant, any possession of another
person which may justly form an
accession, such as that of a person
deceased to whom he succeeds, that
of a vendor, of a donor, of a settlor
of dower; and if my possession
added to the just possession of an-
other person exceeds that of the
590
nem habenti accessio temporis nec
datur nec dari potest; nam ei quod
nullum est, nihil accedere potest.
sed et si witiosam habeat possessio-
nem, id est aut ui aut clam aut pre-
cario ab aduersario adquisitam, non
datur accessio; nam ei ( possessio)
sua nihil prodest.
$ 152. Annus autem retrorsus
numeratur. itaque si tu uerbi gratia
vii mensibus possederis prioribus,
et ego vii posterioribus, ego potior
ero, quod tríéum priorum mensium
possessio nihil tibi in hoc interdicto
prodest, quod alterius anni posses-
Bio est.
$ 153. Possidere autem uidemur
non solum si ipsi possideamus, sed
etiam si nostro nomine aliquis in
possessione sit, licet is nostro iuri
subiectus non sit, qualis est colonus
et inquilinus; per eos quoque, spud
quos deposuerimus, aut quibus com-
modauerimus, aut quibus gratuitam
habitationem praestiterimue, ipsi
possidere uidemur. et hoc est quod
uulgo dicitur retineri possessionem
posse per quemlibet, qui nostro no-
mine sit in possessione. quin etiam
plerique putant animo quoque reéi-
neri possessio( nem, id es! ut quam-
«i8 neque ipsi simus tn possessione)
neque nostro nomine alius, tamen
81 non relinquendae possessionis
&nimo sed postea reuersuri inde
discesserimus, retinere possessionem
uideamur. adtpisci uero possessio-
nem per quos possimus, secundo
commentario rettulimus. nec ulla
dubitatio est quin animo possessio-
nem adipisci non possimus.
$ 154. Reciperandae possessionis
causa solet interdictum dari, si quis
ex possessione ui deiectus sit; nam
ei proponitur interdictum cuius
principium est VNDE TV ILLVM VI
DE ACTIONIBUS.
[rv. $$ 138—170.
adversary, my claim is preferred;
but he who has no possession of his
own neither receives nor can receive
any accession of another's possession;
for what is non-existent is incapable
of receiving accession. So a pos-
cession impeachable for violence,
clandestinity, or permission, cannot
recelve an accession, and is of no
avail.
$ 152. The year computed is the
year immediately preceding; so
that, if you possessed during the
first eight months, and I during the
seven following months, I am pre-
ferred, because your possession for
the first three months avails you
nothing, it having been in a pre-
vious year.
$153. My possession includes,
besides my personal possession, the
possession of any one who holds in
my name, though not subject to my
power; for instance, the possession
of my tenant or lodger. So also a
depositary, borrower for use, usu-
fructuary, or grantee of use or
habitation, may be the instrument
of my possession, as is expressed by
the saying that we retain
sion by those who hold in our name.
It is generally allowed that inten-
tion suffices for the refention of
possession, that is, although we are
neither in possession ourselves, nor
anyone else on our account, yet if
we have gone away without mean-
ing to abandon possession but with
the intention of returning, it would
seem that we retain possession.
The instruments of obtaining pos-
session were mentioned in the se-
cond book, and it is agreed on all
hands, that for obtaining posses-
sion intention does not suffice.
$ 154. An interdict for recover-
ing possession is granted to a per-
son dispossessed of an immovable
by violence, beginning: ‘In the
place whence thou hast violently
1v. §§ 138-170.]
DEIECISTI, per quod is qui deiecif,
cogitur ei restituere rei possessio-
nem, si modo is qui deiectus est,
nec ui nec clam nec precario (ab eo)
derit; — eum qui a me ui aut
clam aut precario possidet, inpune
deicio.
$ 155. Interdum tamen etsi eum
ui deiecerim qui a me ui aut clam
aut precario possederit, cogor ei re-
stituere possessionem, ueluti si ar-
mis eum ui deiecerim ; nam propter
atrocitatem delicti in tantum patior
actionem, ut omni modo debeam ei
restituere possessionem. armorum
autem appellatione non solum scuta
et gladios et galeas significari in-
tellegemus, sed et fustes et lapides.
$ 156. Tertia diuisio interdicto-
rum in hoc est, quod aut simplicia
sunt aut duplicia.
$157. Simplicia sun£ ueluti in
quibus alter actor, alter reus est,
qualia sunt omnia restitutoria aut
exhibitoria; namque actor est qui
desiderat aut exhiberi aut restitui,
reus is est a quo desideratur ut ex-
hibeat aut restituat.
$ 158. Prohibitoriorum autem
interdictorum alia duplicia, alia
simplicia sunt.
$ 159. Simplicia sunt ueluti qui-
bus prohibet praetor in loco sacro
aut in flumine publico ripaue eius
aliquid facere reum ; nam actor est
qui desiderat ne quid fiat, reus is
qui aliquid facere conatur.
$ 160. Duplicia sunt ueluti vTI
POSSIDETIS interdictum et vTRVBI.
ideo autem duplicia uocantur, quod
gar utriusque litigatoris in his con-
DE INTERDICTIS.
591
ousted, which compels the invader
to restore possession, if the person
ousted possessed without violence,
clandestinity, or permission, in re-
Bpect of the invader. Whereas, if
his own possession was violent,
clandestine, or permissive, a person -
may be ousted with impunity.
$ 155. Sometimes, however, the
person violently ousted, though his
own possession was violent, clandes-
tine, or permissive, in respect of the
adversary, must be reinstated, that
is, if he was ousted by force of arms:
for on account of the heinousness
of the offence I am punished to the
extent of being compelled by action
[i.e. by the interdict de vi armata]
to reinstate him without exception
or limitation. By the term arms
we are to understand not only
shields, swords, and helmets, -but
also sticks and stones.
§ 156. A third division of inter-
dicts is into Simple and Double.
§ 157. Those are simple wherein
one party is plaintiff and the other
defendant, as always is the case in
orders of restitution or production ;
for he who demands restitution or
production is plaintiff, and he
from whom it is demanded is de-
fendant.
§ 158. Of prohibitory interdicts,
some are simple, others double.
§ 159. The simple are exemplified
by those wherein the praetor com-
mands the defendant to abstain from
desecrating consecrated ground, or
from obstructing a public river or
its banks; for he who demands
the forbearance is plaintiff, he who
attempts the performance is de-
fendant.
§ 160. Of double interdicts we
have examples in: ‘Whichever party
possesses,’ and ‘ Whichever party
possessed. They are denominated
592
dicio est, nec quisquam praecipue
reus uel actor intellegitur, sed
unusquisque tam rei quam actoris
partes sustinet; quippe praetor
pari sermone cum utroque loquitur.
nam summa conceptio eorum inter-
dictorum haec est vTI NVNC POSSI-
DETIS, QVOMINVS ITA POSSIDEATIS,
VIM FIERI VETO; item alterius
VTRVBI HIC HOMO DE QVO AGITVR
[APVD QVEM] MAIORES PARTE HVIVS
ANNI FVIT, QVOMINVS IS EVM DVCAT,
VIM FIERI VETO.
§ 161. Expositis generibus inter-
dictorum sequitur, ut de ordine et
de exitu eorum dispiciamus. et
incipiamus a simplicibus.
$ 162. (St) igitur restitutorium
uel exhibitorium interdictum red-
ditur, ueluti ut restituatur ei pos-
sessio qui ui deiectus est, aut exhi-
beatur libertus cui patronus operas
indicere uellet, modo sine periculo
res ad exitum perducitur, modo cum
periculo.
$ 163. Namque si arbitrum pos-
tulauerit is cum quo agitur, accipit
formulam quae appellatur arbitra-
ria, et iudicis arbitrio si quid re-
stitui uel exhiberi debeat, id sine
periculo exhibet aut restituit, et ita
absoluitwr; quodsi nec restituat
neque exhibeat, quanti ea res est
condemnatur. sed et actor sine
poena experitur cum eo ques neque
exhibere neque restituere quiequam
oportet, praeterquam si calumniae
iudicium ei oppositum fuerit deci-
mae partis. quamquam Proculo
placuit denegamdum calumniae iu-
dicium et qui arbitrum postulauertt,
quasi hoc ipso confessus uideatur
restituere se uel exhibere debere.
sed alio iure utimur, et recte; po-
tius enim ut modestiore uia litiget,
&rbitrum quisque petit quam quia
confitetur.
DE ACTIONIBUS.
[1v. $$ 138-170.
double because the footing of both
perties is equal, neither being ex-
clusively plaintiff or defendant, but
both playing both parts, and both
being addressed by the praetor in
identical terms. For by the effect
of these interdicts whichever party
now possesses the land, the other is
forbidden to disturb his possession ;
and whichever party has possessed
& slave during the greater part of
the year, the other is forbidden to
disturb him in the abduction of the
slave.
$ 161. After classifying interdicts
we have next to explain their pro-
cess and result; and we begin with
the simple.
$ 162. When an order of resti-
tution or production is issued, for
instance, of restitution of seisin to
a disseisee, or of production of a
freedman whose services are re-
quired by his patron, the proceed-
ings are sometimes penal, some-
times not penal
$163. When arbitration is de-
manded by the defendant, a formula
arbitraria is delivered, and if the
judex directs him to restore or pro-
duce anything, he either restores or
produces it without further penalty,
or he does not restore or produce
it, and then he is condemned in its
simple value. Neither does the
plaintiff incur any penalty for suing
a defendant who is not obliged to
produce or restore, unless he is sued
for a tenth part in an action for
vexatious litigation. For though
Proculus held that the demand of
arbitration precludes the defendant
from suing for vexatious litigation,
as an admission of the plaintiff's
right, the contrary view has justly
prevailed ; for the demand of an
arbiter shows that the defendant
wishes to render litigation less
dangerous, but not that he confesses
the opponent's claim.
1v. $$ 138-170. ]
§ 164. Obseruare (autem) debet
is qui uult arbitrum petere, ut sta-
tim petat, antequam ex iure exeat,
id est antequam a praetore discedat ;
sero enim petentibus non indul-
getur.
$ 165. Itaque si arbitrum non
petierit, sed tacitus de iure exierit,
cum periculo res ad exitum perdu-
citur. nam actor prouocat aduer-
sarium sponsione, (quod) contra
edictum praetoris non exhibuerit
aut non restituerit ; ille autem ad-
uersus sponsionem aduersarii resti-
pulatur. deinde actor quidem spon-
sionis formulam edit aduersario, ille
huic inuicem restipulationis. sed
actor sponsionis formulae subicit et
aliud iudicium de re restituenda uel
exhibenda, ut si sponsione uicerit,
nisi el res exhibentur aut restitua-
tur, |
(24 uersus in C legi nequeunt)
|— aliud facere quam qu—
dicat qu
(7 uereus in C legi nequeunt)
| — appellata— |
(3 uersus in C legi nequeunt)
| |
|- qua
(3 uersus in C legi nequeunt)
Imodis ———-|— paratus fuit
(3 wersus in C legi nequeunt)
$ 166. |—fructus licitan-
do, is tantisper in possessione con|-
stituitur, si modo aduersario suo
fructuaria stipulatione ca|uerit, cuius
uis e£ potestas haec est, ut si contra
eum de poss|essione pronuntiatum
fuerit, eam summam aduer|sario
soluat. haec autem licendi conten-
tio fructus licita|tio uocatur, scilicet
quia | postea alter | al-
terum sponsione prouocat, quod ad-
uersus edictum praetoris possidenti
sili wis facta sit, et inuicem ambo
restipulan|tur aduersus sponsionem ;
uel ——-| una inter eos sponsio item-
DE INTERDICTIS.
593
$164. The defendant must be
careful, if he wishes to demand an
arbiter, to make the demand at
once before he leaves the court or
tribunal of the praetor; for a
subsequent demand will not be
granted.
$ 165. If he leaves the court
without requesting an arbiter, the
proceeding becomes penal: the
plaintiff challenges the defendant
to wager a sum to be forfeited by
the defendant if he has contravened
the edict of the praetor by failing
to produce or restore; and the de-
fendant challenges the plaintiff to
a counter wager of a similar sum
to be forfeited by the plaintiff upon
the opposite condition. The plain-
tiff then delivers the formula of the
wager, and the defendant delivers
the formula of the counter wager.
The plaintiff, in addition to the
formula of the action on the wager,
delivers the formula of another
action (judicium Cascellianum) for
the production or restoration of the
thing in dispute, upon which, if he
obtains judgment in the action on
the wager and the thing is not
restored or produced, the defendant
will be condemned in damages to
the amount of its value.
§ 166. When a double interdict,
Uti possidetis, for instance, has
been issued, the interim possession
or mesne profits are gold by auction,
and the higher bidder of the liti-
gants is placed in possession pend-
ing the controversy, provided that
he gives his opponent security by
the fructuary stipulation, which is
conditioned for forfeiting, in the
event of losing the cause, the value
of the interim profits as fixed by
the auction, and this bidding of
the parties against one another is
called a bidding for the fruits, be-
Qq
594
que restipulatio una —lad eam fit.
| | resti—.
$ 166 a. Iudex apud quem de ea
| re agitur, illud scilicet requirit
(quod) praetor interdicto conplexus
est, id est uter eorum eum fundum
easue aedes per id tempus quo in-
terdictem redditur, nec ui nec clam
nec precario possederit. cum iudex
id explorauerit, et forte secundum
me iudicatum sit, aduersarium mihi
et sponsionis et restipulationis sum-
mas quas cum eo feci, condemnat,
et conuenienter me sponsiones et
restipulationis, quae mecum factae
sunt, absoluit. et hoc amplius si
apud aduersarium meum possessio
est, quia is fructus licitatione uicit,
nisi restituat mihi possessionem,
Cascelliano siue secutorio iudicio
condemnatur.
$ 167. Ergo is qui fructus licita-
tione uicit, si non probat ad se per-
tinere possessionem, sponsionis et
restipulationis et fructus licitationis
summam poenae nomine soluere et
praeterea possessionem restituere
iubetur; et hoc amplius fructus
quos interea percepit, reddit. summa
enim fructus licitationis non pre-
tium est fructuum, sed poenae no-
mine soluitur, quod quis alienam
possessionem per hoc tempus reti-
nere et facultatem fruendi nancisci
conatus est.
DE ACTIONIBUS.
[1v. $$ 138-170.
cause it values and assi the
power of taking the fruits of the
thing during the preliminary in-
terdict procedure. Then each
party challenges the opponent to
wager a sum to be forfeited by the
promisor if he has contravened the
interdict by violently disturbing
the possession of the promisee, and
each party, after binding himself
as promisor in a wager, becomes
the promisee in a similar counter-
wager. —
§ 166 a. The judex who tries the
action on the wager determines the
question left undetermined in the
interdict, namely, which party was
in possession of the house or land
in question, without violence, clan-
destinity, or permission, in respect
of the other at the time when the
edict was issued. If the judex de-
termines this in my favour, he con-
demns my adversary in the penal
sums of the actions on the wager
and counter-wager in which I was
promisee, and absolves me in the
actions upon the wager and coun-
ter-wager in which I was pro-
misor; and, if my opponent is in
possession as higher bidder in the
auction, unless le restores pos-
session, he is condemned in the
action called Cascellianum or Se-
cutorium,
§ 167. So that if the higher
bidder in the auction fails to prove
that he had possession, he is or-
dered to pay the sums of the wager
and counter-wager in which he was
promisor, and the price he offered
for the mesne profits at the sale
by auction, by way of penalty; and
further, to restore possession of the
thing in question, and restore any
profits of which he has had per-
ception; for the price fixed by the
auction is not paid in purchase of
the profits, but as a penalty for
temerity in attempting to detain
1v. $$ 138-170.]
$ 168. Ille autem qui fructus li-
citatione uictus est, si non proba-
uerit ad se pertinere possessionem, -
tantum sponsionis et restipulationis
summam poenae nomine debet.
§ 169. Admonendi tamen sumus
liberum esse ei qui fructus licita-
tione uictus erit, omissa fructuaria
stipulatione, sicut Cascelliano siue
secutorio iudicio de possessione re-
ciperanda experitur, ita similiter
de fructus licitatione agere. in quam
rem proprium iudicium conparatum
est quod appellatur fructuarium,
quo nomine actor iudicatum solui
satis Accipit, dicitur autem et hoc
iudicium secutorium, quod sequitur
sponsionis uictoriam; sed non aeque
Cascellianum uocatur.
$ 170. Sed quia nonnulli inter-
dicto reddito cetera ex interdicto
facere nolebant, atque ob id non
poterat res expediri, praetor in eam
rem prospexit et conparauit inter-
dicta quae secundaria appellamus,
quod secundo loco redduntur. quo-
rum uis et potestas haec est, ut qui
cetera ex interdicto non faciat,
ueluti qui uim non faciat aut fruc-
tus non liceatur aut qui fructus
licitationis satis non det aut si
sponsiones non faciat sponsionumue
iudicia non accipiat, siue possideat,
| restituat aduersario possessionem,
stue non possidelat, uim illi possi-
denti ne faciat. itaque etsi alias
potuerzé | interdicto vr1 PossrpETIS
uincere, si cetera ex interdicto |
per interdictum secundarium
(2 uersus in C legi nequeunt)
| secundarium— |
quamuis hanc opinionem — |—Sabi-
nus et Cassius secuti fuerint, —|—
DE INTERDICTIS,
593.
the possession and obtain the en-
joyment that belonged to another.
$ 168. If the lower bidder in the
auction fails to prove that he had
possession, he is only condemned
to pay the sum of the wager and
counter-wager by way of penalty.
$ 169. It is open to the lower
bidder, if he succeeds in the action
on the wager in which he is pro-
misee, instead of proceeding on the
fructuary stipulation, just as he
brings the Cascellianum or Secu-
torium action for recovering pos-
session, to bring an action upon
the sale by auction which is called
fructuarium, in which he is entitled
to security with sureties for satis-
faction of judgment; which action,
like the action for recovering pos-
session, as following the result of
the action on the wager is called
Secutorium ; but is not, like the
action for recovering possession,
also called Cascellianum.
§ 170. As sometimes, after the
issue of an interdict, one of the
parties declined to take one of the
subsequent steps, and the proceed-
ings came to a stand-still the
praetor has provided for this con-
tingency, and invented the so-called
secondary interdicts, which in such.
a case are issued: whose effect is,
that if a party decline to take any
necessary step in the interdict pro-
cedure, such as the violent disseisin,
or the auction of the mesne profits,
or finding bail for the penal sum
fixed by the auction, or the wager,
or the trial on the wager, if in
possession he shall be ousted, if
out of possession he shall not after-
wards be entitled, by making the
violent disseisin, to continue the
proceedings in Utrubi or Uti pos-
sidetis and so, although he might
have been successful in maintaining
possession if he had complied with
the requisites of procedure, he will
Q2
596 DE ACTIONIBUS. [1v. $$ 138—170.
(9 uersus in Ó legi nequeunt) be deprived of possession by tbe
secondary interdict, if he has not
(20 uersus in C legi nequeunt) done so.
Interdicts are characterized by Gaius as proceedings wherein the
praetor principaliter auctoritatem suam interponit. Principaliter
may simply refer, as was assumed in the first edition, to the chro-
nological order of steps in legal proceedings; and then interdict
procedure will be characterized by the fact that it opens with a
command of the praetor (interdictum) whereas ordinary procedure
opened with an act of the plaintiff (in jus vocatio) and the praetor's
authority was not very signally manifested, at least in statute-
process, till the stage of execution (addictio, missio in possessionem).
But Bethmann-Hollweg, § 98, seems correct in giving a less insig-
nificant meaning to the term which expresses the essential contrast
of Interdict and Action, and interpreting the word principaliter as
expressive of the pre-eminence, supremacy, or absolute power, of the
praetor in the sphere where interdicta were employed. The con-
trast then will be between the jurisdictio of the praetor and his
imperium, In his jurisdictio his functions are merely ministerial
or ancillary to those of the legislator: in his imperium, as con-
servator of order, custodian of the peace (to use modern phrases),
and repressor of violence, he is invested with a portion of the legis-
lator's sovereign power. This antithesis of LEGISLATOR and ADUMI-
NISTRATOR meets us in several fundamental classifications of Roman
jurisprudence: it has already been indicated in connexion with the
contrasted terms, judicia legitima and judicia imperio continentia
§§ 103-109 comm., and the present is a fitting place for again
noticing some of its principal aspects.
(1) Statute-process and the Formulary system are contrasted by
the respective predominance in each of the legislator and admi-
nistrator. In Legis actio the Legislator and the Litigants seem
alone to occupy the scene. The Praetor is only present as master
of the ceremonies, and even as such can only utter sentences which
the Legislator has previously dictated. In the Formulary system
the Praetor appears with much larger attributions; he seems to
have stepped in front of the Legislator and has taken much of the
initiative from the Suitors. Thus, marking the respective promi-
nence of the sTATUTE and the ADMINISTRATOR, we might denominate
the older and younger systems as Legis actio and Praetoris inter-
1v.$$138-170.] PRINCIPALITER INTERPONIT. 597
positio: and it is this accentuation of the statute-book or lawgiver
as opposed to the tribunals or executive that the translation has
attempted to express in offering the invented term Statute-process
as a version of Legis actio.
(2) Both Statute-process and the Formula, as representing at
different periods the Ordo judiciorum or ordinary course of pro-
cedure, by which a magistrate appointed a judex to try a case,
exemplify the predominance of the lawgiver as contrasted with
that of the magistrate, when opposed to extraordinary procedure
or Cognitio extraordinaria praetoris. The latter was the appro-
priate procedure in plaints of children against their parents or
slaves against their owners, victims to whom the civil law ac-
corded no rights: or in grievous damnification (laesio) occasioned
by some exceptional condition (justa causa)—fraud, violence, ab-
sence, ignorance, minority (1 $$ 197—200 Comm.)—so exceptional
that it had been overlooked or disregarded in the rules of jus strictum
respecting dispositions and the modes of acquiring dominion. In these
and other cases, e. g. claims of honorarium (8 $ 162 Comm.) for liberal
services, which in infant society had been gratuitous or only recom-
pensed by politieal power: claims under testamentary trusts which
had not been recognized when the rules regarding testamentary dis-
positions were crystallizing : the praetor by his inquisition and decree
(§§ 103-109 Comm.) superseded not only the judex but also the law-
giver, who had uttered no commands respecting the various cireum-
stances above enumerated. Respecting trusts compare the statement
of Justinian: Fideicommissa ... . nullo vinculo juris, sed tantum
pudore eorum qui rogabantur, continebantur. Postea primus divus
Augustus semel iterumque . . . . jussit consulibus auctoritatem
suam interponere. Quod .... paulatim conversum est in as-
&duam jurisdictionem . . . . ut paulatim etiam praetor proprius
crearetur qui de fideicommissis jus diceret, Inst. 2, 23, 1.
(3) The same antithesis meets us as a principle of division even
within the limits of Ordo judiciorum. Here we find on the one
hand the class of actiones legitimae, actions of civil law, including
under one of the wider acceptations of civil law actiones ex bona
fide; and on the other the class of actiones praetoriae, that is, ac-
tiones fictitiae and actions with a formula in factum concepta. In
the latter class the praetor, except so far as he abstained with a
demure deference from inserting in the formula the sacred term
Oportere, certainly exercised the attributions of a legislator. A
598 DE ACTIONIBUS. [1v. $$ 138—170.
similar, though not identical division, as already has been men-
tioned, p. 543, was that into judicia legitima and judicia imperio
continentia; a division that, speaking roughly, corresponded to the
functions of the praetor in imperial Rome and his functions in the
subject provinces. This last division, though important in its time,
was more purely historic and accidental than the preceding: it has
left a less permanent impress on Roman law, and its traces are
nearly effaced from the compilation of Justinian.
(4) Interdict procedure, as opposed to the regular mode of liti-
gation, is defined by Gaius by the characteristic feature that the
magistrate principaliter auctoritatem suam interponit. This feature,
as we have now seen, was not peculiar to Interdicte: but if we sup-
pose that Interdicts were coeval with Statute-process and formed
a matter of Cognitio extraordinaria; and that, further, the other
Bubjects of cognitio extraordinaria were then imperfectly developed;
at such a period Interdicts would form the most signal manifestation
of magisterial auctoritas : and it is perhaps to a jurist of this period
that the definition we have quoted is due. So large a power of the
magistrate must however have seemed, even at Rome, inconsistent
with republican liberty:.and m Interdict procedure, as we know it,
obedience to the praetor's decree is not enforced by the praetor
himself but by a judex, and by legal proceedings in the ordinary
form; either, that is, by an actio ex sponsione or by an actio
arbitraria ($ 141). Aceordingly in the last period we find Inter-
dict procedure opposed to Cognitio extraordinaria and ranked
under the contra-distinguished class of Jus ordinarium or Ordo
judieiorum : § 155, Ceterum cessat interdictum et succedere poterit
notio praetoris (i.e. eognitio extraordinaria) ut apud eum discep-
tetur utrum quis in potestate sit an non sit, Dig. 43, 30, 3, 3.
Thus the Interdict became rather a matter of jurisdictio than of im-
perium. However it still remained true that in issuing an Interdict
the praetor had spoken with the voice of a sovereign. This precept
is not an application of some general command of the legislator, but
is itself a law, and will serve as the governing principle of future
adjudieation. If we describe Law as a universal interdict addressed
by the legislator to the community, Interdict may be described as
a particular Law addressed by the magistrate to individuals. This
will appear more plamly when we come to the details of Interdict
procedure.
Interdicts relate to subjects in almost all departments of the code.’
1v. $$138-170.] DE INTERDICTIS. 599
A. In jus publicum and jus sacrum we find the interdicts re-
lating to sacred places and publie places—public roads or public
rivers. These places are protected by interdicta popularia, inter-
dicts in which any individual may vindicate as prosecutor the
interests of the public, Dig. 43, 8, 2, 84. |
B. In the law of status and the law of domestic relations there
are the interdictum de homine libero exhibendo, Dig. 43, 29, a kind
of Writ of Habeas Corpus: interdicta de liberis exhibendis and de
liberis ducendis, protecting the patria potestas, Dig. 43, 30: and de
libertis exhibendis, assisting the patron.
C. In the code of Property (res familiaris) and (1) in the depart-
ment of res singulae we have the interdicts Utrubi, Uti possidetis,
and Unde vi, relating to the possession of movables and immovables :
and others, closely allied, similarly related to the subjecte of ser-
vitudes. In controversies between owners of neighbouring land we
have interdictum Demolitorium based on Operis novi nunciatio (an
admonition of the defendant to desist from some architectural in-
novation), an interdict requiring the demolition of the building
erected in spite of such prohibition on the part of the plaintiff
(nuneians) and before such prohibition was set aside by judicial
authority, Dig. 89, 1: and the interdict Quod vi aut clam, simi-
larly requiring the restitution or undoing of some innovation in
land (polluting streams, cutting trees, ploughing up pasture, &c.)
that has been executed either furtively or in face of the prohibition
of some party who is interested and who has jus prohibendi,
Dig. 48, 24: and other interdicts de arboribus caedendis and de
glande legenda, Dig. 43, 27, 28, enforcing provisions of the Twelve
Tables. EEUU
I said that interdicts were to be found in almost all depart-
ments of the code. It is observable that no interdicte are employed
under the code of Obligation (choses in action, jus in personam)
except in cases which combine obligation with a real right (jus in
rem). Thus interdictum Salvianum, $ 147, protects the landlord
in the recovery of his rent by enforcing his pignus on the movables
of the lessee. | :
(2) In the code of rerum universitas we have the interdicta
Quorum bonorum, $ 144, Dig. 43, 2, and Quod legatorum, Dig.
48, 8, in aid of the universal successor.
D. In the eode of Procedure we have the interdicts Quem
" fundum, Quam hereditatem, Quem usumfructum, $ 89, and the
600 DE ACTIONIBUS. [rv. $$ 138—170.
interdicta Secundaria, § 170, compelling a defendant in a real
action to defend himself in the mode prescribed by the legislator
under pain of forfeiting possession, Here too we may place the
interdicts Utrubi and Uti possidetis so far as they are not them-
selves final suits but only means of determining provisional or
interimistic possession during the pendency of the definitive vindi-
eatio : and here too, if we look on Quorum bonorum as standing to
hereditatis petitio in the same relation in which Uti possidetis
stands to vindicatio, i.e. as merely preparatory to the final suit, we
may place the interdict Quorum bonorum. At a later stage of
proceedings the interdict Ne vis fiat ei qui in possessionem missus
erit, Dig. 48, 4, protects the creditor who has obtained execution.
The interdictum fraudatorium protecte the creditor against fraudu-
lent alienation by an insolvent debtor, Dig. 42, 8: the interdictum
possessorium and interdictum sectorium, § 145, protect the pur-
chaser of the estate of the insolvent or the condemned criminal.
As an alternative to some of these interdicta, the plaintiff had his
option of an actio in factum: e.g. an alternative to interdictum
Salvianum was actio Serviana, Inst. Just. 4, 6, 7; and an alter-
native to interdictum fraudatorium was actio Pauliana, Dig. 22, 1,
38, 4. Or possibly in these cases also the Interdict was the pro-
visional, the Action the definitive proceeding.
$ 140. Restituere in respect of the acts which it denotes is a
word of many meanings, and comprehends several acte which in
physical character have little in common but the name. Sometimes
it means the demolition of an unlawful structure: e.g. Quod in
flumine publico ripave ejus fiat, sive quid in id flumen ripamve ejus
immissum habeas, quo statio iterve navigio deterior sit, fiat, resti-
tuas, Dig. 48, 12, 1, 19. * What you have built in & public river or
on its bank, or what you have discharged into the river or on to its
bank, interfering with the anchorage or passage of vessels, I com-
mand you to demolish and remove.’ Sometimes it means the
restoration of possession, as in the interdict Unde vi, § 154; some-
times the delivery of possession, where no possession has preceded,
as in the interdict Quorum bonorum, $ 144. But in spite of the
variety of physical acts which it denotes, the word Restituere is
univocal if we look at ite legal connotation, which is always the
undoing of some wrong, the reinstatement of a person in the pos-
session and enjoyment of a right.
Exhibere is the production of a thing or person, and was usually
1v. $ 138-170. ] QUORUM BONORUM. 601
the preliminary of a vindication. Quem liberum hominem dolo malo
retines exhibeas, Dig. 48, 29, 1. ‘The freeman whom you unlawfully
detain I command you to produce.’ Qui quaeve in potestate Lucii
Titii est, si is eave apud te est, dolove malo factum est quominus
apud te esset, ita eum eamve exhibeas, Dig. 48, 30,1. ‘The son or
daughter of Lucius Titius, who is subject to his power, and whom
you detain or have fraudulently ceased to detain, I command you
to produce.
$ 144. The interdict Quorum bonorum, according to Savigny,
was the remedy whereby a successor, whether civil or praetorian,
and, if praetorian, whether contra tabulas or secundum tabulas or
ab intestato, having already, in response to his demand (agnitio)
of the succession, obtained from the praetor the formal grant
(datio) of bonorum possessio, maintained his title thereto before
the tribunals if he met with opposition; just as hereditatis petitio
was the remedy whereby the civil successor could have maintained
& corresponding claim to the hereditas.
The terms of the interdict ran as follows: Quorum bonorum ex
edicto meo illi possessio data est, quod de his bonis pro herede aut
pro possessore possides, possideresve si nihil usucaptum esset,
quodque dolo malo fecisti ut desineres possidere, id illi restituas,
Dig. 43, 2, 1. ‘ Whatever portion of the goods, granted in pur-
suance of my edict to be possessed by such and such a one, thou
possessest as successor or as unentitled occupant, or wouldest so
possess but for usucapion, or hast fraudulently ceased to possess,
such portion do thou deliver up to such a one.’
Quorum bonorum was the proper remedy against two classes of
adversary : (1) any one who claimed as successor (pro herede), either
under the praetorian edict, Dig, 5, 3, 11 pr., or as cestui que trust
(fideicommissarius), Dig. 5, 8, 20, 18, or at civil law; and (2)
praedo, or any one who seized and held without title, or merely
by title of occupancy (pro possessore), in virtue of the anomalous
law which permitted strangers to seize vacant hereditaments, and
convert possession into ownership by a short period of usucapion,
2 § 52. If the adversary claimed on any other title, e.g. pro empto
or pro donato, the proper remedy of bonorum possessor or heres
was not by Quorum bonorum nor by Hereditatis petitio, but by
an ordinary Real action (Rei vindieatio) The words * possideresve
si nihil usucaptum foret? are a trace of the Sc. Juventianum,
which relieved the grantee of possession against usucapion, i.e.
602 DE ACTIONIBUS. [rv. $$ 138-170.
which rescinded the usucapion, and allowed Quorum bonorum to
be brought even after usucapion had been completed and the bona
fide putative successor or the mala fide unentitled occupant no
longer possessed pro herede or pro possessore, but pro suo, 2 § 57.
{According to Puchta, usucapion was always unavailing against
Quorum bonorum, and the effect of Sc. Juventianum was only to
assist the heir at civil law, by inserting in the formula of Here-
ditatis petitio a clause that had always as a matter of course been
inserted in the interdict Quorum bonorum.)
According, then, to Savigny, Quorum bonorum was a definitive
suit in matters of succession when the plaintiff, instead of claiming
hereditas in reliance on jus civile, claimed bonorum possessio in
reliance on jus praetorium. But the prevalent opinion is that
of Vangerow, that Quorum bonorum was merely a summary and
provisional procedure for obtaining possession pending the defini-
tive suit for the succession. Such possession was defeasible (sine
re) by an adverse decision of the final suit, which, if the succes-
sion was by civil law, would be hereditatis petitio; if it was
merely praetorian, as founded on cognatio &c., hereditatis petitio
possessoria, Dig. 5, 5, 1. In support of this view, it may be ob-
served that on Savigny's hypothesis no satisfactory account can
be given of the nature of hereditatis petitio possessoria.
$ 148. In the real actions of statute-process or the eldest system
the procedure for awarding provisional possession during the
pendency of a suit was called Vindiciae dicendae, Gellius 20, 10,
$ 16. In the later methods of real action, vindicatio per sponsionem
or per formulam petitoriam, Vindiciae dicendae was apparently
superseded by the interdicts Utrubi and Uti possidetis; which,
accordingly, would bear the same relation to vindicatio that Quorum
bonorum bore to hereditatis petitio.
As these interdicts were required to determine the question
who should have possession pending the vindicatio, so it is clear
that a third anterior proceeding would be necessary to determine
who should have provisional possession during the pendency of
litigation on the interdict: and similarly we might imagine a
fourth, a fifth, and in fact an infinite series of anterior proceedings
to be required. We shall find however that this regressus ad
infinitum was stopped at the third term by means of an auction
(fructus licitatio), § 166, a process of a very summary character.
If a party attempted to defeat this provision by refusing to take
Iv. $$ 138-170. ] UTRUBI. 603
part in the auction, his opponent was aided by interdicta Secundaria,
$170. It may seem that opposition to the issue of interdicta
Secundaria would again open out a vista of an infinite series of
anterior steps; but, doubtless, the only means of preventing the
issue of interdictum Secundarium was an instant consent to co-
operation in fructus licitatio.
Fructus licitatio was obsolete in the time of Justinian : in modern
Italy and Germany it is superseded by a process called Possessorrum
Summarissimum ; in which the judge on a brief inquisition pro-
visionally awards possession to the party who proves the last act
of undisturbed possession.
The proceedings in a double interdict seem complicated, em-
bracing fourteen stages: (1) interdictum redditum, (2) vis ex
conventu, (3, 4, 5, 6) sponsiones and restipulationes, (7, 8, 9, 10)
sponsionum and restipulationum formulae, (11) fructus licitatio,
(12) fructuaria stipulatio, (13) Cascellianum judicium, (14) either
fructuariae stipulationis formula or fructuarium judicium. But
the decision of all of the six actions would depend on the result of
the trial of one of the sponsionum formulae. The interdict Uti
possidetis was of the following form: Uti eas aedes, quibus de
agitur, nec vi nec clam nec precario alter ab altero possidetis,
quominus ita possideatis, vim fieri veto. De cloacis hoc inter-
dictum non dabo: neque pluris quam quanti res erit, intra
annum quo primum experiundi potestas fuerit, agere permittam,
Dig. 48, 17, 1. ‘Whichever party has possession of the house in
question, without violence, clandestinity, or permission in respect
of the adversary, the violent disturbance of his possession I pro-
hibit. Sewers are not included in this interdict. The value of the
thing in dispute and no more may be recovered within the first
year of days available for procedure (annus utilis)? The right
of the possessor was not affected if his possession was commenced
by violence, clandestinity, or permission in respect of any other
person than the defendant. Inst. 4, 15, 4.
The interdict Utrubi was of the following form: Utrubi hic
homo quo de agitur majore parte hujusce anni fuit, quominus is
eum ducat, vim fieri veto, Dig. 43,31. ‘Whichever party had pos-
session of the slave in question during the greater part of the pre-
ceding year, the violent hindrance of his prehension and abduction
of the slave I prohibit.’ The same exceptions of violence, clandes-
tinity, and permission, as in the interdict Uti possidetis, were either
604 DE ACTIONIBUS. [rv. $$ 138-170.
expressed or understood. Before Justinian's time Utrubi had been
assimilated to Uti possidetis, that is, comparative length of posses-
sion within the year was made immaterial, Inst. 4, 15, 4. ‘The
modern terms are different; both interdicte, so far as possession is
a title to redress, are assimilated ; and in respect both of movables
and of immovables judgment goes for him who proves unimpeach-
able possession at the moment of commencing the action.’
Utrubi and Uti possidetis are classed by Gaius under the head
of interdicta Retinendae possessionis. This was their category
when either party succeeded in proving an unimpeachable posses-
sion: but the exceptions, vi clam aut precario, when sustained by
the non-possessor, brought Utrubi and Uti possidetis under the
eategory of interdicts Recuperandae possessionis. If, that is to say,
a litigant proved that he had actual possession, but his possession
was shown to be vitiated by violence, secrecy, or permission, he was
dispossessed and his opponent was reinstated in possession, Dig.
48, 17, 8, pr. Utrubi was clearly a recuperatory interdict in its
original form: but it was so equally, in virtue of the exceptions,
after its form had been assimilated to that of Uti possidetis.
Baron, $ 120.
§ 154. The interdict Unde vi (or De vi) had two forms, one of
which is called by Cicero interdictum quotidianum, and redressed
eases of ordinary violence (vis quotidiana), while the other was
invoked in cases of armed violence (vis armata). The exceptio
vitiosae possessionis could be pleaded as a defence to the former,
but not to the latter, interdict.
The interdictum quotidianum has been thus restored by Keller
from indications in Cicero, Pro Caecina and Pro Tullio: Unde tu
Numeri Negidi aut familia aut procurator tuus Aulum Agerium aut
familiam aut procuratorem illius in hoc anno vi dejecisti, qua de re
agitur, cum ille possideret, quod nec vi nec clam nec precario a te
possideret, eo restituas. *In the place whence thou, Numerius
Negidius, thy slaves or procurator, hast this year violently ousted
Aulus Agerius, his slaves or procurator, as he alleges, which he
possessed without violence, clandestinity, or permission in respect
of thee, in that place do thou reinstate him.’
The interdict De vi armata may be restored as follows: Unde tu
Numeri Negidi aut familia aut procurator tuus Aulum Agerium aut
familiam aut procuratorem illius vi hominibus coactis armatisve
dejecisti, qua de re agitur, eo restituas. ‘In the place whence thou,
1v. $$ 138-170.] UNDE VI. 603
Numerius Negidius, thy slaves or procurator, hast violently ousted
Aulus Agerius, his slaves or procurator, by men assembled or armed,
in that place do thou reinstate him.’ This differed from the ordinary
interdiet by the omission of the exceptions, and the omission of
limitation to a year.
The interdict Unde vi only applied to immovables. Illud utique
in dubium non venit, interdictum hoc ad res mobiles non pertinere,
Dig. 48, 16, 16. ‘It is certain that this interdict is not available
for disseisin of movables.’
The right of the defendant in the ordinary interdict (quotidianum)
to plead by way of exception the vices (violence, secrecy, permission)
by which the'plaintiff's possession was tainted, was apparently deemed
to be abrogated by a constitution of Valentinian, A.D. 389, Cod. 8, 4, 7.
‘Whoever dares to seize by violence things in the possession of the
treasury or of private persons without waiting for a judicial order,
shall restore possession, and, if he is proprietor, shall forfeit his
property, if he is not proprietor, shall forfeit the value. This was
declared to apply both to movables and immovables, Inst. 4, 2, 1.
In accordance with the spirit of this constitution, the dispossessor
was no longer allowed to plead the exceptions in the old form of
the interdict, and they are omitted in the new form which we find
in the Digest: Unde tu illum vi dejecisti aut familia tua dejecit,
de eo quaeque ille tunc ibi habuit tantummodo intra annum, post
annum de eo quod ad eum qui vi dejecit pervenerit, judicium dabo,
Dig. 48, 16,1. ‘The land (or house) whence thou or thy slaves
hast violently ousted such a one, and the movables which he had
therein, shall be recoverable by action within & year; after the
expiration of a year he shall only recover what came into the
hands of the dispossessor. That is to say, the distinction between
vis armata and vis quotidiana was no longer recognized. Savigny's
opinion, that in virtue of this constitution the interdict Unde vi
became applicable to movables as well as to immovables, is not
generally adopted.
Although violence, armed or unarmed, was prohibited to be em-
ployed for the recovery of possession even from possessor vitiosus,
yet to repel violence by violence in the defence of possession was
permitted, Dig. 43, 16,8, 9. ‘An armed aggressor may be lawfully
repelled by arms, but this must be immediately, and we may not
only resist disseisin, but eject the disseisor, provided that no interval
has elapsed.’ Ibid. 17. ‘A possessor who is violently disseised and
606 DE ACTIONIBUS. [1v. §§ 138-170.
recovers seisin by immediate violence, rather restores his former
position than possesses by violence. Therefore, if I oust you by
violence, and am immediately ousted by you, and then oust you
again, you may have the interdict Unde vi.’
We have seen that Uti possidetis and Utrubi, though called
interdicts Retinendae possessionis, were also in effect interdicts
Recuperandae possessionis whenever any of the vitia possessionis
was established: that if the possession of the actual possessor was
tainted with one of three vices, if it was not adverse (open and
unauthorized) and commenced without violence (vi, clam, aut
precario) then his adversary recovered possession. What, then, it
may be asked, was the use of a distinct mterdict Recuperandae
possessionis, the interdict Unde vi, which, like the Uti possidetis,
was only available for a year? The answer is, that Uti possidetis
only restored possession when the dispossessor was in present pos-
session; it gave no redress when a third party was the present
possessor: in such cases the party dispossessed required a different
remedy, and this was given him in the interdict Unde vi, which
could be maintained against a dispossessor whether the latter con-
tinued in possession or not. Further, by Uti possidetis the inter-
mediate profits (fructus) were only recoverable from the commence-
ment of the suit, by Unde vi from the time of the ejectment; and
the remedy of the disseisee by Uti possidetis was barred by the
vices of his own possession, not so his remedy by Unde vi, though,
as we see by the text, this only applied to vis armata, when Gaius
wrote.
As violent dispossession was remedied by the interdict Unde vi,
so other interdicts remedied dispossession whose inception was
clandestine or permissive. An interdict De clandestina possessione
seems to be mentioned, Dig. 10, 3, 7, 5. But it would scarcely be
required in the case of immovables, for as a possessor was not
disseised until he had notice of the invasion, he could immediately
by attempting an entry convert the clandestine into a violent dis-
possession. Nor would it be required for movables, for clandestine
dispossession of a movable might be redressed by Utrubi combined,
perhaps, with an exhibitory interdict or order of production. Ac-
cordingly, it is generally supposed that no special interdict against
clandestine dispossession ever existed,
The interdict De precario was in these terms; Quod precario ab
illo habes, aut dolo malo fecisti ut desineres habere, qua de re agitur,
1v. $$ 138-170.] DEMOLITORIUM. 607
id illi restituas, Dig. 43, 26, 2. ‘The possession of the thing in
question which thou holdest by the permission of such a one, or
hast fraudulently ceased to hold, do thou restore to him.’
Before we quit this topic we may take the opportunity of con-
sidering some of the respects in which the disposition called Pre-
carium differed from a closely allied institution, the contract called
Commodatum. |
(1) Precario rogans (the precarious tenant) generally had pos-
session: Commodatarius (the borrower) never had more than de-
tention.
(2) The obligation in Precarium is purely unilateral and on the
side of precario rogans. Precario dans (the grantor of precarious
tenancy) is under no obligation, not even the semi-bilateral obli-
gation for impensae &c., which is incumbent on Commodans (the
lender).
(3) Precario rogans is not, like Commodatarius, responsible for
diligentia, Dig. 43, 26, 8, 3.
At a late period of Roman law Precarium was so far regarded as
a contractual obligation that Precario dans could recover by an
actio praescriptis verbis, Dig. 43, 26, 2, 2, and 19, 2. Thus Pre-
cario dans had two remedies, an action on delicet (interdictum de
precario) for such, we shall see, was the nature of the possessory
interdicts, and an action on contract: Commodans had only his
action on contract; for interdicts, as we have stated, were not em-
ployed in matters of contractual obligation.
§ 156. Paulus mentioned a fourth class of interdicts, namely,
those for either acquiring or recovering possession. Sunt etiam
interdicta duplicia tam recuperandae quam adipiscendae possessionis,
Dig. 43,1, 2, 3. These are the restitutory interdicts, Quem fundum,
Quam hereditatem, Quem usumfructum, which have been already
quoted, § 89, whereby, if the defendant in a real action refused to
give security judicatum solvi, possession was transferred to the plain-
tiff, who in some cases would acquire, in others recover possession.
Quem fundum was the interdict employed in Vindieatio: Quam
hereditatem in Hereditatis petitio: Quem usumfructum in the vin-
dieation of a Personal servitude. In interdict procedure, instituted
for the retention of possession, analogous functions were performed
by further interdicts called interdicta Secundaria, $ 170.
Pending litigation respecting Urban servitudes the plaintiff was
protected by a peculiar institution, the interdictum Demolitorium
608 DE ACTIONIBUS. [rv. $$ 138-170.
based on Operis novi nuntiatio, the nature of which demands a
passing notice. If A, a proprietor or owner of some real right
(mortgagee, emphyteuta, superficiarius), was aggrieved by some
architectural innovation (aedificatio, demolitio) on the part of B,
whereby an urban servitude over the tenement of A was asserted
or some urban servitude [jus habendi or jus prohibendi] belonging
to A, as owner of a dominant tenement, was violated, A was
entitled to serve a formal inhibition or private injunction on B
(prohibitio, operis novi nuntiatio) summoning him to desist from
the innovation. On this summons B was bound to desist from his
work until he either obtained from the praetor a dissolution or dis-
charge of the summons (remissio, missam facere nuntiationem):
or entered into a satisdatio or cautio de demoliendo, security that
the structure should be demolished in the event of A as plaintiff
succeeding in a future actio Negatoria or Confessoria, i. e. establish-
ing his own jus prohibendi, which would be the same as disproving
B's jus aedificandi. If without obtaining such remissio or giving
such cautio B persisted in his work, he was compelled to demolish
it by the interdictum Demolitorium. If he desisted from the
work for the present, but refused to oppose A's suit in the regular
course by entering into satisdatio de re defendenda, it was the duty
of the judge to compel him to enter into a stipulation that he
would not again attempt to build before he established his own jus
aedificandi, or disproved A's jus prohibendi, as plaintiff in a suit.
This would be actio negatoria of a jus altius non tollendi, if he
denied that he was ever under an urban servitude to the tenement
of A: actio confessoria of jus altius tollendi, if he affirmed that the
servitude was extinguished by usucapio libertatis, Dig. 39, 1, 15:
or some other actio confessoria if he claimed a dominant servitude
over the tenement of A.
Pending disputes on wrongs relating to land a similar function
was discharged by the interdictum Quod vi aut clam. On a pro-
hibitio from a neighbour, who might have a real right or be a
mere lessee, prohibitus was obliged to desist from any agricultural
innovation (ploughing up pasture, cutting trees, polluting streams,
&c.) until he offered security (satisdatio judicio sisti) in any suit in
which he might be made defendant, Dig. 48, 24, 8, 5; or proved
by way of exceptio his jus faciendi, or by way of Negation, dis-
proved his neighbour’s jus prohibendi, as plaintiff in some real
action or, if the opus was on his own land, in Uti possidetis, Dig.
rv. $$ 138-170.] UTI POSSIDETIS. 609
48, 17, 8, 2. If he persisted in his operation in spite of the
prohibitio, or avoided prohibitio by omittmg to give notice
to the party interested, the interdictum Quod vi aut clam com-
pelled him to efface it and to pay damages for the harm it
occasioned.
The interdicts which Gaius calls double are called by Ulpian
mixed, Dig. 44, 7, 87, 1. * Mixed. actions are those wherein each
party is both plaintiff and defendant, as the action for tracing
boundaries, for partition of an inheritance, for dissolution of joint
ownership, and the interdicts Uti possidetis and Utrubi' The
effect of this duplicity or mixture of characters was that the plain-
tiff, as well as the defendant, was liable to condemnation and
absolution. According to Justinian, the three personal actions
just named are called Mixed because they involve questions both
of property and obligation, Mixtam causam obtinere videntur, tam
in rem quam in personam, Inst. 4, 6, 20. Another effect of the
duplicity of the interdicts was, as we shall presently see, to increase
the number of stipulations in the proceeding by Sponsio.
In the system of statute-process (legis aetio) Vindicatio was a
judicium duplex. The contention of the defendant was not merely
& negation of the plaintiff's claim, but also an affirmation of the
defendant's claim, a contravindication. Praetor interrogat eum qui
cedit an contravindicet, 2 $ 24; cf. 46$ 16. It was not necessary
that the cross claims of the plaintiff and defendant should be
identical in character. On the one side there might be a claim of
status (libertas), on the other of property (dominica potestas), one
party vindicating as free the person whom another claimed as slave :
or one party vindicating the freedom of a person whom another, as
transferee of patria potestas, claimed to be his bondsman (man-
cipium); or one party asserting the independence (sui juris) of
a person whom another claimed as fihus familias or as subject to
patria potestas.
Similarly under the legis actio procedrre Hereditatis petitio, 8 $
82 comm., would be judicium duplex; for Hereditatis petitio is a
species of Vindicatio.
Vindicatio and Hereditatis petitio are related to the actions
Communi dividundo and Familiae herciscundae as wholes to parts :
the former lay claim to integral ownership and integral succession
where the latter merely claim partial ownership and partial suc-
cession, Inst. 4, 6, 20. The former became judicia simplicia in the
Rr
610 DE ACTIONIBUS. [xv. $$ 138-170.
later system of law, while the latter remained judicia duplicia.
Thering, § 52.
In English jurisprudence both parties are said to be equally
plaintiffs and equally defendants in the actions called Quare impedit
and Replevin.
Uti possidetis was sometimes judicium simplex. We may dis-
tinguish three applications of this procedure:
(1) When both parties claim to be in actual possession and one
of them is found to be truly in possession without a taint of vio-
lence, secrecy, or permission, Uti possidetis is then really an
interdictum Retinendae possessionis. |
(2) When the possession of the aetual possessor is found to be
vitiated by violence, secrecy, or permission, he is displaced, and
the non-possessor is reinstated. Uti possidetis is then in substance
and effect interdictum Recuperandae possessionis. In both of these
cases it is judicium duplex.
(3) Uti possidetis might further be brought against a defendant
who made no contention that he himself was or ought to be in
possession, but who was guilty of some disturbance or molestation
of the possessor; e.g. by prohibitio : Qui colere fundum prohibetur,
possidere prohibetur, Dig. 438, 17, 8, 4. Eum qui aedificare pro-
hibeatur, possidere prohiberi, manifestum est, Dig. 41, 2, 52, 1.
Etenim videris mihi possessionis controversiam facere, qui prohibes
me uti mea possessione, Dig. 43, 17, 8, 2. In this case Uti possi-
detis would be a judicium simplex. Uti possidetis in cases (2) and
(3) is à genuine actio ex delicto. So it was nominally in case (1);
but we shall see that here the delict might be merely fictitious (vis
ex conventu).
Savigny holds that No. (3) was the original application of Uti
possidetis; and that Nos. (1) and (2) were subsequent extensions of
its employment and due to jurisprudence, i.e. the ingenuity of the
jurists: the reverse is the prevalent doctrine, Baron, $ 120.
$ 168. The formula arbitraria in Unde vi must have contained
the clause, Unless the defendant obey the judge’s order of resti-
tution; the rest is uncertain. The analogy of the other interdicta
suggests something to the following effect: If it apppear that the
defendant has disobeyed the praetor's order to reinstate the plain-
tiff, then, unless the defendant comply with the judge's order of
restitution, do thou, judge, condemn him in all the damages the
plaintiff shall have sustained.
1v. $$ 138-170.] UTI POSSIDETIS. 611
The mode of restitution would be prescribed by the judex, who
would probably require the restitution of all movables that had
been removed, though these were not mentioned in the original
form of the interdict, $ 154.
The jurists who considered that a defendant who desired a
formula arbitraria was guilty by confession of the delict laid to his
charge, must have supposed that the only function of the judex
in this case was assessment of damages (litis aestimatio), Dig.
9, 2, 25, 2.
$ 165. Huschke supposes that the sponsio on Quorum bonorum
was of the following form: If the praetor Quintus Caepio in ac-
cordance with his edict has granted me possession of the goods left
by Turpilia, and if in contravention of his edict thou hast not
restored to me the portion of those goods which thou possessest as
successor or as occupant, or hast fraudulently ceased to possess;
dost thou promise to pay me such and such a sum? I promise.
The stricti juris action based on this stipulatio would be followed
by another, which was doubtless called judicium Secutorium, $ 166 a.
. The latter would probably contain an intentio in factum concepta,
of the form: Si Aulus Agerius Numerium Negidium sponsione
vicit, and a formula arbitraria such as that already described for
the non-penal procedure: Ni Numerius Negidius Aulo Agerio
bona illa judicis arbitrio restituat, quanti ea res erit, judex, Nume-
rum Negidium Aulo Agerio condemna.
After the first appearance before the praetor (in jus vocatio) and
the issue of the interdict (interdictum redditum or editum) it would
be necessary to wait a certain time to see whether it was obeyed
or disobeyed by the defendant; and if it was disobeyed, there would
be at any time within the period of a year a second in jus vocatio,
or at least a reappearance in jure secured by a vadimonium which
the parties entered into at the time of their first appearance, for the
nomination of the judex and the delivery of the formula arbitraria,
if the procedure was non-penal; or for the sponsio and delivery of
the formulas of action on the sponsio and the judicium secutorium,
if the procedure was penal.
The interdict or command of the magistrate, like the law or
command of the legislator, has two members (protasis or minor
premiss, and apodosis or conclusion) ; or two terms, an antecedent
(a title expressed by the middle term B) and a consequent (an obli-
gation expressed by the major term A). The antecedent term is
RIJO
612 DE ACTIONIBUS. [rv. $$ 138-170.
usually introduced by a relative (Quorum bonorum, Unde dejecisti,
Uti possidetis, &c.) equivalent to a 67: accordingly any interdict
may be paraphrased by the proposition : If such and such antecedent
title [B, middle term] exists, then thou [C, minor term] art under
such and such consequent obligation [A, major term]: and this
antecedent, simple as it may appear, is usually analysable into a
variety of conditions. Thus in Quorum bonorum the antecedent
clause and question for the judex is not only whether certain goods
are detained by the defendant, but also whether the plaintiff had
obtained a grant of possession of these goods, whether such grant
was rightfully obtained, and in accordance with the provisions of
the edict, &c.
§ 166. From the two sponsiones and two restipulationes which
are mentioned, it appears that Gaius is now speaking of double
interdicts, and from the words eum fundum easve aedes, § 166 a, it
appears that he is speaking not of Utrubi but of Uti possidetis.
After a first in jus vocatio in which an interdict Uti possidetis
had been obtained, there took place, by prearrangement, a molesta-
tion of one of the litigants by the other. In the disorderly begin-
nings of society this molestation was doubtless often in reality
a turbulent defiance of the magisterial interdict: but in more
orderly periods both parties would be desirous of trying their nght
by legal course, and the steps taken by both would be prearranged
with a view of satisfying the conditions of interdict procedure (vis
ex conventu). So a trespass, or at least an act that contains many of
the elements of a trespass, is often arranged to be committed for the
purpose of enabling parties to try a right before English tribunals.
Cf. Cic. pro Caec. 1, 7, 8, 10, 11; pro Tull. 8.
It is probable that the lacuna preceding this paragraph contained
an explanation of vis ex conventu and of other parts of the pro-
cedure in interdicta duplicia.
After the vis ex conventu had been simulated, there took place
a second in jus vocatio, or reappearance in jure in pursuance of the
vadimonium, at which the parties entered into five different
stipulations.
Just as interdict procedure was necessary in order to determine
which litigant should have interim possession pending the vindi-
catio, so It was necessary to determine who should have interim
possession pending a possibly protracted interdict procedure. This
was accomplished by means of Fructus licitatio, which took place
rv. $$ 138-170.] UTI POSSIDETIS. 613
in the second appearance before the praetor, and was followed
by either (a) the Fructuaria stipulatio, or satisdatio judicatum
solvi.
Each party then wagered a penal sum in two characters, for each
party was both plaintiff and defendant: and, as a sponsio was
a unilateral contract, in order to produce a bilateral contract, that
is, to bind both parties and constitute a single bet or wager in the
modern sense of the term, it was necessary to have two stipula-
tions, that is, a sponsio and a restipulatio. For the purpose, there-
fore, of making two wagers the parties entered into four stipu-
lations (two sponsions and two restipulations); i.e. (4) one sponsio
and (c) one restipulatio in which a litigant was promisor and pro-
misee as plaintiff, and (7) a second sponsio and (e) a second resti-
pulatio in which he was promisor and promisee as defendant.
The sponsio would be a stipulation to the following effect: Si
adversus edictum praetoris possidenti mihi vis a te facta est, tot
nummos dare spondes? Spondeo: the restipulatio to the following
effect : Si adversus edictum praetoris possidenti tibi vis a me facta
non est, tot nummos dare spondes? Spondeo. Thereby each party
would be bound to pay, or entitled to receive, two penal sums,
according as the actions brought on these four stipulations decided
the issue which the stipulations raised.
A judex was then appointed who tried the four actions.
Then if the victor in the four actions had not been the higher
bidder at the Licitatio, the judex decided a fifth and sixth action:
namely one called judicium Secutorium or Cascellianum, which had
& formula arbitraria, and whereby possession of the movable or
immovable and its fruits was recovered from the higher bidder;
and another on (a) the Fructuaria stipulatio, to recover from the
higher bidder a penal sum equal to the value of the fructus.
Instead of suing on (a) the Fructuaria stipulatio the victor had
the option of bringing judicium Secutorium for the recovery of this
penal sum, and then he was protected against the event of his op-
ponent's insolvency by sureties (satisdatio) It may be asked what
compensating disadvantage of this course should ever induce the
vietor to sue on (a) Fructuaria stipulatio. Perhaps, as Krueger
suggests, if he sued for the penal sum by Secutorium with satis-
datio, then when he brought Cascellianum he only recovered the
Res without the interim fructus. The satisdatio would thus in-
crease his certainty of obtaining the amount of the penal sum, but
614 DE ACTIONIBUS. [rv. $$ 138—170.
would diminish by the value of the fructus the total amount
recovered.
Corresponding to the penal sum incurred by Fructus licitatio, and
secured by (a) Fructuaria stipulatio or Satisdatio of the litigant
who obtains possession pending interdict procedure, was the liability
in twice the value of the fructus incurred by the litigant who
obtained possession by Vindiciae dicendae pending statute-process.
Such at least appears to be the import of a partly conjectural frag-
ment of the Twelve Tables: Si vindiciam falsam tulit, stlitis et
vindiciarum praetor arbitros tres dato: eorum arbitrio possessor
fructus duplione damnum decidito. Festus. ‘When temporary
possession has been wrongfully ‘obtained, the question of property
and the value of the fruits of possession shall be decided by three
arbiters, by whose arbitration the wrongful possessor shall pay as
a penalty twice the value of the fruits of possession to the true
proprietor.’
§ 170. From this .paragraph it appears that as in Real actions
the defendant who declined to give satisdatio judicatum solvi and
thus impeded the unwinding of the process of vindicatio was
deprived of possession by the interdicts Quem fundum, Quam
hereditatem, Quem usumfructum, § 156 comm. ; so a suitor whose
contumacious refusal to take the regular steps prevented interdict
procedure from accomplishing its normal course was deprived of
possession by interdicta Secundaria.
The mention of vis (qui viM-non faciet) shows that, subsequent
to the issue of the interdict and antecedent to further proceedings,
one act of the forensic drama was a conventional ejectment (vis ex
conventu); which may be identified with what is called Deductio
quae moribus fit in suits by Sponsio, and perhaps with the Manuum
consertio in Sacramentum, § 88 comm.,:§ 18 comm.
The inquiry into the nature of PossEssiON has been purposely
postponed hitherto in order not to interrupt the exposition by
Gaius of the details of the possessory interdicts (Utrubi, Uti pos-
sidetis, Unde v1); 1.e. those interdicts in which the fact of possession
is itself a title to the continuance or restoration of possession.
Possession may be defined as a relation which consists of two
elements; Detention, or physical power over a thing, and Animus
domini, a certain intention on the part of the detainer, the intention
of holding it as proprietor, of deriving from it the benefits of
ownership. "Theophilus, the colleague of Tribonian and author of
rv. §§ 138-170.] POSSESSION. 615
the Greek version of Justinian’s Institutes, says: véuerOal ears rd
Vvxij 0eomó(ovros karéxew, 8, 89, 2. The meaning of this defini-
tion will best appear from an examination of the instances in
which according to the jurists Possession does or does not exist;
and in particular from the contrast of the cases where Possession
is present with those where Detention is present but Possession
absent. .
Possession, as opposed to Detention, is called Possessio civilis, or
simply Possessio, or juristic possession.
Mere Detention is called Custodia, In possessione esse, Possessio
naturalis.
Juristic possession does not depend on a legal title to possess (jus
possidendi) but on the fact of a man's having actual control of a
thing with the intention of maintaining it. ‘Separata esse debet
possessio a proprietate; fieri etenim potest, ut alter possessor sit,
dominus non sit, alter dominus quidem sit, possessor vero non
sit ; fieri potest, ut et possessor idem et dominus sit.’ Dig. 48, 17,
1, 2.
The characteristic of possessio civilis is the combination of De-
tentio with the Animus domini: but in certain singular or ab-
normal instances we shall find that this differentia is wanting,
and detention in the name of another owner (alieno nomine),
1.e. possessio naturalis, is treated as if it were juristic possession.
Possession, accompanied with certain other extraneous conditions,
namely Titulus and Bona fides, is transformed by a certain lapse
of time into dominion ; and is called Usucapion-possession, 2 §§ 40—
61 comm. Our present purpose is with Possession apart from these
foreign elements: the Possession which, as protected by Utrubi,
Uti possidetis, and Unde vi, is often called Interdict-possession.
The slave and filiusfamilias had no possession. Quod ex justa
causa corporaliter a servo tenetur id in peculio servi est, et pecu-
lium quod servus civiliter quidem possidere non potest sed natu-
raliter tenet, dominus creditur possidere, Dig. 41, 2, 24. * When
a slave has detention on just grounds, the thing is in his peculium,
and his master has possession, Qui in alena potestate sunt, rem
peculiarem tenere possunt, habere et possidere non possunt, quia
possessio non tantum corporis sed et juris est, Dig. 41, 2, 1. ‘A
person under power has detention of a peculium but not possession,
for the conditions of possession are not purely physical, but partly
legal ;’ i.e. possession is not mere physical detention, but detention
616 DE ACTIONIBUS. [rv. $$ 138-170.
by a person who has certain rights, 2, 9, is independent. We must
except the peculium castrense and quasi-castrense. Filiusfamilias
in castris adquisitum usucapiet, Dig. 41, 8. 4, 1. * What a filius-
familias acquires m the field is converted by possession into pro-
perty.'
A manager or agent (procurator) has detention, not possession.
Nee idem est possidere et alieno nomine possidere, nam is pos-
sidet cujus nomine possidetur. Procurator alienge possessioni
praestat ministerium, Dig. 41, 2, 18, pr. ‘ Possession differs from
detention in the name of another, for he has possession of a thing
in whose name it is held. An agent is the instrument of another
person's possession. Generaliter quisquis omnino nostro nomine
sit in possessione, veluti procurator, hospes, amicus, nos possidere
videmur, Dig. 41, 2, 9. ‘The occupation of a procurator, guest, or
friend in our name is our possession. Cf.2 6 95. Inst. 2, 9, 5.
A borrower has only detention, the lender retains possession.
Rei commodatae et possessionem et proprietatem retinemus, Dig.
18, 6, 8.
A lessee (conductor) has detention, the lessor (locator) possession.
Et fructuarius, et colonus, et inquilinus sunt in praedio et tamen
non possident, Dig. 48, 26, 6,2. ‘The usufructuary, tenant, and
lodger have occupation, but not possession.’ Per colonos et inqui-
linos aut servos nostros possidemus, Dig. 41, 2, 25, 1. ‘Our
farmers, lodgers, and slaves are instrumenta of our possession."
The Emphyteuta had possession as well as detention. Emphy-
teusis was originally regarded as a species of locatio or venditio,
but Zeno decided that it was a contract sui generis, and governed
by its own rules, Inst. 3, 24, 3; cf. 3 $ 145. The relation of
emphyteuta to dominus is analogous in some respects to the rela-
tion of the freeholder or copyholder to the lord in feudal times.
The emphyteuta was grantee of land in perpetuity, subject to pay-
ment of a rent. The property remained in the grantor, but the
emphyteuta had a jus in rem nearly amounting to property, for
he could recover the land by vindication (real action) from any
possessor and, as long as he paid his rent, from the grantor, Dig.
6, 3, and he had the right of alienation. 'The dominus probably
retained usucapion-possession.
The mortgagor had by a legal fiction usucapion-possession, the
mortgagee had interdict-possession. Qui pignori dedit ad usuca-
pionem tantum possidet; quod ad reliquas omnes causas pertinet,
rv. $$ 138-170.] QUASI-POSSESSION. 617
qui accepit possidet, Dig. 41, 8, 16. The mortgagee could recover
the pledge by actio in rem quasi Serviana, Inst. 4, 6, 7. Here,
then, interdict-possession appears to be a jus in rem, for it is re-
coverable by vindicatio. But instead of identifying the mortgagee's
jus in rem and his interdict-possession, it is more correct to regard
his jus in rem and his interdict-possession as distinct though con-
current. In a hypotheca, that is, an agreement without delivery,
the mortgagee acquired no possession. The fictitious usucapion-
possession of the mortgagor was in the interest of the mortgagee,
whose security against third persons would be corroborated by the
usucapion of the mortgagor.
The depositary has mere detention, the depositor has possession.
The depositary only acquires possession in one case, that is, when
he is made a stake-holder for this very purpose, Dig. 16, 3, 17.
‘The property and possession of the thing deposited remain with
the depositor, except when possession as well as detention is ex-
pressly delivered to a stake-holder: for this is the only seques-
tration where possession passes, the object being to interrupt the
usucapion of both litigants.’ It seems, then, that in Sequestration
not even usucapion-possession can be ascribed to the victor in the
suit, Dig. 41, 2, 39.
With Permissive occupation (precarium) possession passes, unless
it is expressly agreed that only detention shall pass. Meminisse
autem nos oportet, eum qui precario habet, etiam possidere, Dig.
43, 26, 4, 1. ‘The occupant by permission has possession.’ Is
qui rogavit ut precario in fundo moretur, non possidet, sed possessio
apud eum qui concessit remanet, Dig. 43, 26, 6, 2. ‘The grantee
of permissive detention does not possess, but possession remains
with the grantor.’ The grantor always retained usucapion-posses-
sion, Dig. 43, 26, 15, 4.
The defendant in a vindicatio has detention but not necessarily
possession, Dig. 6, 1, 9. * Although it is not expressed in his com-
mission, the judex must see whether the defendant is in possession.
Some think the same possession is required as for the interdicts ;
and that, accordingly, the depositary, borrower, hirer, not having
such possession, cannot be defendants in a vindication. But, in
truth, whoever has detention and the means of restitution, may be
made defendant in a vindication.’ In Personal actions the de-
fendant is not called possessor.
The owner of & servitude (jus in re) has no possession. Usu-
618 DE ACTIONIBUS. [1v. $$ 138-170.
fructuarius usucapere servum non potest quia non possidet, Dig. 41,
1,10, 5. ‘The usufructuary has no usucapion, for he has no pos-
session. Naturaliter videtur possidere is qui usumfructum habet,
Dig. 41, 2, 12, pr. ‘The usufructuary has mere detention.’
[It would be a fallacy to argue that occupation is possession
because it is naturalis possessio, just as it would be to argue
that nine is ten because it is ten minus one, for an epithet
sometimes detracts from, instead of adding to, the connotation of a
word.]
As the usufructuary has no possession, it follows a fortiori that
the usuary has no possession. [Although the jus in re called usus
must be distinguished from possession, the words usucapio, usurpatio
show that in the older language usus = possessio. |
Servitudes, though not the subject of possession, were the sub-
ject of quasi-possession, § 139, e. g. Fundi possessionem vel usus-
fructus quasi possessionem, Dig. 4, 6, 28, 2: Si quis longa quasi
possessione jus aquae ducendae nactus sit, Dig. 8, 5, 10, pr.: which
was called juris possessio in contradiction to true possession or
corporis possessio ; Possessionem vel corporis vel juris, Dig. 43, 26,
2,8: though if juris possessio was the proper name for possession
of a fraction of property, possession that bore the same relation
to the totality of property should have been called, not corporis
possessio, but dominii possessio.
The quasi-possession of servitudes, like the possession of corporeal
things, was protected by interdicts. The possession of rural servi-
tudes, such as iter, actus, via, jus aquae ducendae, &c., was pro-
tected by special interdicts: e.g. Quo itinere actuque: privato, quo
de agitur, vel via hoc anno nec vi nec clam nec precario ab illo usus
es, quo minus ita utaris, vim fieri veto, Dig. 43, 19. ‘The foot-
way, horse-way, carriage-way in question, which thou hast used
within a year without violence, clandestinity, or permission in re-
spect of the adversary, the violent hindrance of thy continuing to
use I prohibit.’
. Urbane servitudes, whether positive, as jus tigni immittendi, or
negative, as jus altius non tollendi, being closely connected with
possession of an immovable, according to Savigny, were always
protected by Uti possidetis: according to Vangerow, the pro-
tection of the status quo was always by interdictum Quod vi
aut clam or Operis novi nuntiatio, § 355. Personal servitudes,
e.g. ususfructus, usus, fructus, were protected, according to cir-
rv. $6 138-170.] POSSESSION. 619
cumstances, by Uti possidetis, Utrubi, or Unde vi, with a special
differentiation, which constituted them interdicta wa, Vat.
fr. 90.
Four of the cases we have mentioned, the possession of the
emphyteuta, the mortgagee, the sequestrator, and the permissive
holder, are anomalous; for possession is composed of two elements,
physical detention and the purpose of exercising rights of owner-
ship (animus domini), and none of these four possessors can be said
to have the animus domini. In these four cases, and these alone,
it is necessary to assume that the law recognized a derivative or
transferred possession, in which one of the elements of original
possession, the animus domini, is absent, and replaced by what may
be called the animus alienam possessionem exercendi.
In three of the above-mentioned cases usucapion-possession re-
mained with the proprietor (the dominus agri emphyteuticarii, the
mortgagor, the grantor of precarious tenancy), and only interdict-
possession passed to the derivative possessor (the emphyteuta, the
mortgagee, the grantee of precarious tenancy). In all the four cases
(including Sequestration) the dominus lost the protection of the inter-
dicts Retinendae possessionis, which were transferred to the deri-
vative possessors. The grantor of precarious tenancy was protected,
however, by the interdict De precario, an interdict Recuperandae
possessionis.
The Superficiarius (holder of a Real right (jus in re) to a house
of which an owner of the ground is proprietor, e. g. a person who
with permission of the landowner has built out of his own materials
a house on another person's land) has, aecording to Savigny, only
juris quasi-possessio : but this is inconsistent with the fact that
he is protected by the interdicts Unde vi and De precario, Dig. 43,
16, 1,5. According to Vangerow he has Derivative possession
like the four above mentioned: but this is inconsistent with the
fact that he is protected by the special interdict De superficiebus,
while the owner of the soil retains the protection of Uti possidetis,
Dig. 48, 17, 8, 7, which in Derivative possession is transferred to
the Derivative possessor. The true doctrine, then, appears to be
that Superfieiarius has Original possession of the house, though
the landlord has possession of the soil, Baron, $ 188. Superficies
would be vindicated by a formula in factum concepta: Si paret
Aulum Agerium superficiem in perpetuum (or, in annos triginta)
conduxisse. Savigny 5, p. 81.
620 DE ACTIONIBUS. [rv. $$ 138-170.
Ás possession consists of two elements, one corporeal and one
mental, it is evident that it cannot be acquired by a purely mental
act. Adipiscimur possessionem corpore et animo, neque per se
animo aut per se corpore, Dig. 41, 2,8, 1. * We acquire possession
by the conjunction of a corporeal and a mental act, and not by
either separately. Neratius et Proculus solo animo non posse nos
adquirere possessionem aiunt, si non antecedat naturalis possessio,
Ibid. 3. * Intention alone does not suffice for acquiring possession
unless preceded by detention) Detention necessarily implies not
corporeal contact, but corporeal presence [except when a movable
is by my order placed in my house during my absence], and is the
physical power of dealing immediately with a subject and excluding
any foreign agency. The acquisition of detention 1s Prehension
which is never fictitious or symbolical, but a real physical change of
relation. The continuance of possession requires a continuance of
both the elements, which are essential to its acquisition, that is,
both physical control and the intention of enjoying as proprietor.
Fere quibuscunque modis obligamur iisdem in contrarium actis
liberamur, quum quibus modis acquirimus, iisdem in contrarium
actis amittimus. Ut igitur nulla possessio acquiri nisi animo et
corpore potest, ita nulla amittitur nisi in qua utrumque (utrumque
= alterutrum, or read utcunque or utrumcunque) in contrarium
actum est, Dig. 50, 17, 153. ‘As obligation is dissolved by a
reversal of the conditions under which it is created, so possession is
lost by a reversal of the conditions under which it is acquired. As
its acquisition demands the concurrence of a corporeal and a mental
condition, so its termination requires the reversal of one or the
other.’ Ejus quidem quod corpore nostro teneremus [dicam]
possessionem amitti vel animo vel etiam corpore, Dig. 41, 2, 44.
‘ When we detain in person, possession may be terminated by either
a mental or a physical change.’
The physical condition, however, is not to be interpreted so
strictly in the continuance of possession as in its commencement ;
for continued possession permits a temporary suspension of physical
control, and only requires the power of reproducing this relation
at will: for instance, it is not lost if we have left a thing
unintentionally in a forest, but remember the exact spot; or have
_ stowed a thing in a place of security, but forgot for the moment
where we put it; or abandon an Alpine pasture in winter, with the
intention of revisiting it on the return of summer, Dig. 41, 2, 3, 13.
rv. §§ 138-170.] POSSESSION. 621
‘The possession of movables, excepting slaves, is terminated by loss
of custody, or the power of reproducing at will natural detention.’
There was an exception in the case of slaves, for a fugitive slave
was regarded as still in his master’s possession, and in the case of
land, for a man did not lose possession of his land which had been
invaded in his absence until he had notice of the invasion; that is
to say, he retained possession in the interim solely by his mental
disposition. Nam saltus hibernos et aestivos, quorum possessio
retinetur animo, licet neque servum neque colonum ibi habeamus,
quamvis saltus proposito possidendi fuerit alius ingressus, tamdiu
priorem possidere dictum est, quamdiu possessionem ab alio occupa-
tam ignoraret, Dig. 41, 2, 44. ‘When a winter or summer pasture,
retained in possession without the instrumentality of slaves or
tenants, solely by the mental relation, is invaded by a stranger, the
prior possessor is not regarded as ousted from possession until he
has notice of the invasion. It is by reference to this laxer inter-
pretation and to these exceptions that we can understand the state-
ment of Gaius, § 153, that possession may be retained without a
continuance of corporeal detention.
A guardian acting alone may acquire possession for an infant
ward, that is, à child under the age of seven. Or possession may be
acquired by Prehension on the part of the infant, while the Animus
domini is supplied by tutoris auctoritas, Dig. 41, 2, 32, 2. This is
exceptional, because in other matters tutoris auctoritas could only
be given to a child infantia major, i.e. after completion of seven
years of age. After seven years complete a child can acquire
possession for itself either with or without the guardian's authority,
8 $109; Dig. 26, 8. 9 pr.
The possessor of a whole or a substance formed by the com-
bination of various parts (universitas) does not separately possess
with intention of ownership the various elemente of which it is
composed. If, then, a man begins by possessing the whole and
completes the usucapion of the whole before its dissolution into its
component parts, the result will depend on the question whether
all the parts belonged to the original proprietor of the whole or
some of them belonged to a third person. If some of the materials
belonged to & third proprietor, then, as these have not been se-
parately possessed during the period of combination, the usucapion
of them only begins to run after the dissolution of the whole,
Dig. 6, 1, 28, 7; Dig. 41, 1, 7, 11. This rule is not a singularity
622 DE ACTIONIBUS. [rv. $$ 138-170.
of timber (Dig. 47, 8), but applies to all materials that have been
combined into a whole, whether movable or immovable.
If all the materials belonged to the proprietor of the whole, then
he who acquires by usucapion the whole is proprietor of all the
materials if they are subsequently separated, just as he would be
if he had acquired property in the whole by tradition or any other
valid form of alienation from the original proprietor.
If the dissolution of the whole precedes the completion of
usucapion, then the usucapion of the separate materials has to
begin ab initio, Dig. 41, 3, 23 pr. Thus, if a man has possessed
& house for nine years and six months, he will complete its usu-
capion in another six months: but if any of the materials (windows,
doors, columns, tiles) are separated, he will require three years to
acquire them by usucapion as movables.
If, on the contrary, a person begins by possessing the materials
separately and after a time combines them into a whole, the ques-
tion whether his usucapion of the materials continues to run
depends on the principles which govern the /oss of possession.
Possession is not lost by the absence of animus possidendi, but
by a positive animus non possidendi. As this cannot here be
alleged to exist, the usucapion of the materials will continue to run
in spite of their combination and wil be completed as soon as if
they had remained separate, Dig. 41, 8, 80, 1l. An exception is
produced by the prohibition of the Twelve Tables to sue for build-
ing materials as long as they form a portion of a house (tigna
juncta aedibus, Dig. 47, 8): for, as agere non valenti non currit
praescriptio, $110 comm., the usucapion of the timber must be sus-
pended until the house from any cause is demolished. Inst. 2, 1,
29. Vangerow, § 204.
Having passed in review the nature of Possession and the form
of the Possessory interdicts, we may now examine the often mooted
question what is the relation of Possession to the classification of
Rights as Real or Personal: to which division of actions, Real or
Personal, is procedure by the Possessory interdicts to be assimi-
lated ?
The answer to this must begin by distinguishing mere Possession
or Interdict-possession, from Possession associated with Titulus and
Bona fides, or Usucapion-possession, The latter is incipient pro-
perty, and is recoverable by actio in rem Publiciana, 2 $ 41; that
is, is treated in respect of its remedy as if it were perfect property
rv. §§ 138-170.] POSSESSION IS A REAL RIGHT. 623
in respect of all persons except the owner: Usucapion-possession
then is a Real right and is recoverable by a Real action.
All interdict procedure belongs to the class of Personal actions
enforcing obligations generated by delict, Modestinus, Dig. 44, 7,
52, 6. ‘The ordinance of the magistrate is the source of an
obligation in matters which the annual edict or the magistrate
enjoins or forbids.’ Interdicta omnia, licet in rem videantur con-
cepta, vi tamen ipsa personalia sunt, Ulpian, Dig. 43, 1, 8. ‘All
interdicts, though impersonal (Real) in terms, are in substance
Personal actions. |
The party against whom judgment was given in interdict pro-
cedure was found guilty of having committed a delict; that is, of
having disobeyed the mandate contained in the interdict of the
magistrate. Interdict procedure then belonged to the class of
penal or delictual actions. That the possessory interdicts in par-
ticular (Utrubi, Uti possidetis, and Unde vi) were classed with
actions ex delicto, appears from the fact that they were only main-
tainable against the wrong-doer within a year from their nativity,
Dig. 48, 17, 1 pr.; Dig. 48, 16, 1 pr.; and were only maintainable
against the heir of the wrong-doer so far as he was enriched by the
wrong of his predecessor (quatenus ad eum pervenit .... ut, tamen
luerum ei extorqueatur, Dig. 44, 7, 35 pr.), features which the inter-
dicts have in common with other unilaterally penal actions.
The right of à person who has been dispossessed to be reinstated
in possession is a secondary right based on the violation of some
primary right. What was the nature of that primary right? Ac-
cording to Savigny it was the right of a freeman to be exempt from
violence or corporeal molestation; not the right of a possessor to
continue in possession. lle denies, that is, that the fact of Pos-
session is a title investing the possessor with & Real right to con-
tinue in possession; and bases the right of reinstatement on an-
other Real right, one of the rights that we have called Primordial,
the right to immunity from corporeal violence.
The classical jurists seem to have evaded the question. The
delict adjudicated upon in interdict procedure is in form the
violation of a public duty, the duty of obedience to the magistrate.
That it was in substance the violation of a private or civil right
of a person who has been dispossessed did not appear on the face
of the proceedings; and consequently the nature of this right had
not to be investigated.
624 DE ACTIONIBUS. [rv. $$ 138-170.
Considering that possession involved a right against the world
to freedom from molestation ; remembering, further, the old division
of Real actions in English law into Possessory and Droitural, and
observing the practical similarity of the Possessory interdicts to the
Possessory real actions, an Englishman will be inclined to look upon
Utrubi and Uti possidetis as practically Real actions and Posses-
sion as practically a Real right. Unde vi implies a genuine tort,
and may find its proper place among Personal actions ex maleficio.
This arrangement has the authority of Vangerow, who introduces
Utrubi and Uti possidetis along with Vindicatio into the law of
Dominion, and makes these interdicts bear towards Vindicatio in
the department of Ownership the relation which in the department
of Succession Quorum bonorum bears to Petitio hereditatis.
That in a given system of positive law what is in substance a
Real action may assume the form of an action on Delict, we may
convince ourselves by remembering some of the anomalies of the
scheme of actions in English law. Trover and Detinue, which were
brought to recover movable property, and therefore were in sub-
stance Real actions, were kinds of Trespass, that is of action on
delict: Assumpsit, the remedy for enforeing & simple contract,
was externally & species of Trespass on the Case, another action on
delict: and Ejectment, practically the sole real action for the re-
covery of land, was theoretically another species of Trespass.
The interdict, as originating action, bears some resemblance to
2 now abolished institution of English law, the Original writ. But
the Original writ was a mandate addressed by the head of adminis-
tration or judicature to the sheriff; that is, to an executive officer,
not, as the interdiet, to the individual suitor. Besides, this man-
date of the crown required the sheriff to command a defendant
to obey the crown by obeying the precepts of the legislator: the
peculiarity of the interdict, as appears from the preceding account
of its character, was that it formed of itself the whole of the law
which the suitor was commanded to obey. The possessory inter-
dicts, for instance, simple and meagre as they outwardly seemed,
really comprised the whole law (the whole synthesis of Title and
Obligation) that governed the subject of Possession. And the same
is true of all the other interdicts which have been enumerated.
This, as already observed, is apparently the true interpretation
of the terms in which Gaius expresses the distinctive feature of
Interdicts: certis ex causis Praetor aut Proconsul PRINCIPALITER
iv. §§ 171-187.] DE POENA TEMERE LITIGANTIUM. 625
auctoritatem suam finiepdis controversiis interponit, § 189: i.e. in
issuing an interdict the magistrate exercised a principalis auctoritas,
wielded a sovereign authority.
As particular commands addressed to individuals, instead of
universal commands addressed to the community, Interdicts may
be regarded as survivals into a later and more organized stage
of society of the THEMISTES (judgments anterior to law, the basis
of future law) of the primeval ruler. See Maine’s Ancient Law,
p. 4.
But though originally the subjects of the Interdict had been
omitted by the legislator, as matters rather of administration than
of legislation ; yet after many individual Interdicts had been issued,
and their conditions had been generalized by the authorities of
jurisprudence; after moreover the rules which would be observed
in their issue had been announced by the magistrate in his annual
proclamation; the area of questions decided by Interdict was
practically as much subject to law as any other department of
Roman life. The code of rules promulgated by the magistrate
(jus praetorium), being accepted by the state, was just as much
law as if it had been enacted by the legislative assemblies: so that
finally Interdict procedure differed from ordinary litigation merely
by a fringe of form, that served as a memento of its historic origin,
the extraordinary power of the magistrate in republican Rome:
this fringe of form disappeared with the formulary process, the
procedure in the domain once managed by Interdict being assimi-
lated to the procedure employed in all the other departments of the
code; thus Justinian finds it unnecessary to speak in his Institutes
of the old forms of Interdict procedure. Inst. 4, 15, 8.
DE POENA TEMERE LITIGANTIUM.
$ 171. Modo | pecuniaria
$171. We have now to notice
poena modo iurisiurand?religione—|
—.; eaque praetor——|——aduer-
sus infitiantes ex quibusdam causis
dupl? actio constituitur, ueluti si
iudicati aut depensi aut damni in-
iuriae aut legatorum per damna-
tionem relictorum nomine agitur;
ex quibusdam causis sponsionem
facere permittitur, ueluti de pecunia
certa credita et pecunia constituta;
Bed certae quidem creditae pecuniae
that in order to prevent vexatious
litigation, both plaintiffs and de-
fendants are restrained sometimes
by pecuniary penalties, sometimes
by the sanction of an oath which
they are compelled to take, some-
times by fear of suffering infamy.
The defendant’s denial of his obli-
gation is in certain cases punished
by the duplication of the damages
to be recovered. This occurs in an
626
tertiae partis, constitutae uero pe-
cuniae partis dimidiae.
$172. Quodsi neque sponsionis
neque dupli actionis periculum ei
cum quo agitur, tniungatur, ac ne
statim quidem ab initio pluris quam
Bimpli sit actio, permittit praetor
iusiurandum exigere NON CALYM-
NIAE CAV84 INFITIAS IRE. unde
quamuis heredes uel qui heredum
loco ha|bentur,—obligati sint, item
feminae pupill:|que extmastur peri-
culo sponsionis, iubet tamen eos
lurare.
§ 173. Statim autem ab initio
pluris quam simpli actio est ueluti
furti manifesti quadrupli, nec mani-
festi dupli, concepti et oblati tripli.
nam ex his causis et aliis quibus-
dam, siue quis neget siue fateatur,
pluris quam simpli est actio.
$ 174. Actoris quoque calumnia
coercetur modo calumniae iudicio,
modo contrario, modo iureiurando,
modo restipulatione. .
$ 175. Et quidem calumniae iu-
dicium aduersus omnes actiones
locum habet, et est decimae partis,
praeterquam quod aduersus adser-
torem tertiae partis est.
$ 176. Liberum est autem ei
cum quo agitur, aut calumniae
iudicium opponere aut iusiurandum
exigere, non calumniae causa agere.
§ 177. Contrarium autem iudi-
DE ACTIONIBUS.
[xv. $$ 171-187.
action on & judgment debt, or for
money paid by a sponsor, or for in-
jurious damage, or for legacies left
in the form of judgment debt.
Sometimes a wager of a penal sum
is permitted, as in an action of loan,
or on a promise to pay a pre-existing
debt, in the former case of one third
of the sum in dispute, in the latter
of one half.
§ 172. In the absence of a penal
wager, and of duplication of damages
on denial, and of absolute multipli-
cation of damages, the plaintiff is
allowed by the Praetor to exact an
oath from the defendant that his
denial is conscientious. Accord-
ingly, although successors and quasi-
successors are always exempt from
penalty, and women and wards are
excused the compulsory wager, still
they are required to take the oath
of bona fides.
§ 173. There is an absolute mul-
tiplication of damages in various
actions: in an action of manifest
theft & quadruplication, for theft
not manifest a duplication, for pos-
session or obtrusion of stolen goods
a triplication : for in these and some
other actions the damages are a
multiple of the plaintiffs loss, whe-
ther the defendant denies or con-
fesses the claim.
§ 174. On the part of the plaintiff
reckless litigation is checked by the
action of dishonest litigation, by the
Contrary action, by oath, and by re-
stipulation.
$175. The action of dishonest
litigation lies against the plaintiff
for the tenth part of the value he
has claimed by action, except that
in the case of an asserter of liberty
it is a third.
§ 176. It is optional to the de-
fendant whether he brings an action
of dishonest litigation or exacts an
oath of bona fides.
$ 177. The Contrary action only
Iv. §§ 171-187.] DE POENA TEMERE LITIGANTIUM.
cium ex certis causis constituitur,
ueluti si iniuriarum agatur, et si
cum muliere eo nomine agatur,
quod dicatur uentris nomine in
possessionem missa dolo malo ad
alium possessionem transtulisse, et
si quis eo nomine agat, quod dicat
se a praetore in possessionem mis-
sum ab alio quo admissum non
esse. sed aduersus iniuriarum
quidem actionem decimae partis
datur, aduersus uero duas istas
quintae.
$178. Seuerior autem coercitio
est per contrarium iudicium. nam
calumniae iudicio decimae partis
nemo damnatur nisi qui intellegit
non recte se agere, sed uexandi
aduersarii gratia actionem instituit,
potiusque ex iudicis errore uel
iniquitate uictoriam sperat quam
ex causa ueritatis; calumnia enim
in adfectu est, sicut. furti crimen.
contrario uero iudicio omni modo
damnatur actor, si causam non
tenuerit, licet. aliqua opinione in-
ductus crediderit se recte agere.
§ 179. Vtique autem ex quibus
causis contrario iudicio agi potest,
etiam calumniae iudicium locum
habet ; sed alterutro tantwm iudicio
agere permittitur. qua ratione si
iusiurandum de calumnia exactum
fuerit, quemadmodum calumniae
iudicium non datur, ita et con-
irarium dari non debet.
$ 180. Restipulationis quoque
poena ex certis causis fieri solet ;
et quemadmodum contrario iudicio
omni modo condemnatur actor, si
causam non tenuerit, nec requiritur
an scierit non recte se agere, ita
etiam restipulationis poena omni
modo damnatur actor, si uincere
non potuerit.
$ 181. Qui autem restipulationis
poenam patitur, ei neque calumniae
iudicium opponitur, neque iuris-
627
lies in certain cases, for instance,
against the plaintiff in an action of
outrage, in an action against a widow
put into possession in the name of
her unborn child for fraudulent
transfer of possession, or an action
for non-admission of a person [judg-
ment creditor, damni infecti no-
mine, etc. Digest 42, 4.] sent into
possession by the praetor. In the
action of outrage it lies for the
tenth of the damages, in the two
latter actions for the fifth.
§ 178. Of these repressive mea-
sures the Contrary action is the
more severe. A plaintiff sued for
dishonest litigation, to forfeit the
tenth of the value, must have known
he had no right, and have sued to
harass his adversary, in reliance on
the error or iniquity of the judex,
rather than on the justice of his
cause; for dishonest litigation, like
the crime of theft, implies intention.
In the Contrary action he is con-
demned if he merely loses the pre-
vious action, even though he had
grounds for believing in the good-
ness of his cause.
$179. Wherever the contrary
action lies, the action for dishonest
litigation also lies, but they are not
concurrent; and an oath of bona
fides excludes both the action of
dishonest litigation and the Con-
trary action.
$180. The restipulatio also is
confined to certain cases, and the
plaintiff who loses his cause, as he
is condemned in the contrary action,
B0 he forfeits the penalty of the
restipulatio, even though he sued
with bona fides.
$ 181. Therestipulatio precludes
a party from suing for dishonest
litigation, from exacting the oath
882
628
iurandi religio emiungitur; nam
contrarium iudicium ex his causis
locum non habere palam est.
§ 182. Quibusdam iudiciis dam-
nati ignominiosi fiunt, ueluti furti,
ui bonorum raptorum, iniuriarum ;
item pro socio, fiduciae, tutelae,
mandati, depositi. sed furti aut
ui (bonorum) raptorum aut iniuri-
arum non solum damnati notantur
ignominia, sed etiam pacti, wt in
edicto praetoris scriptum est; et
recte: plurimum enim interest,
utrum ex delicto aliquis an ex
contractu debitor sit. nec (amen
ulla parte edicti id ipsum nomina-
tim exprimitur, ut aliquis igno-
miniosus sit; sed qui prohibetur
et pro alio postulare et cognstorem
dare procuratoremue habere, item
(pro)curatorio aut cogniforio no-
mine iudicio interuenire, ignomini-
osus esse dicitur.
$ 183. In summa sciendum est
eum qui cum aliquo consistere uelit,
(in tus wocare) oportere et eum
qui uocatus est, si non uenerit,
poenam ex edicto praetoris com-
mittere. quasdam tamen personas
sine permissu praetoris in ius uo-
care non licet, ueluti parentes pa-
tronos patronas, item liberos et
parentes patroni patronaeue; et in
eum qui aduersus ea egerit, poena
constituitur.
$ 184. Cum autem in 1us uocatus
fuerit aduersarius, neque eo die
finiri potuerit negotium, uadi-
monium ei faciendum est, id est
ut promittat se certo die sisti.
$ 185. Fiunt autem uadimonia
quibusdam ex causis pura, id est
sine satisdatione, quibusdam cum
gatisdatione, quibusdam iureiurando,
quibusdam recuperatoribus suppo-
sitis, id est ut qui non steterit, is
protinus a recuperatoribus in sum-
mam uadimoniicondemnetur; eaque
DE ACTIONIBUS.
(xv. §§ 171-187.
of bona fides, and from instituting
the Contrary action.
§ 182. In some actions condem-
nation carries infamy, as in the
actions of theft, rapine, outrage,
partnership, trust, guardianship,
agency, deposit. In prosecutions
for theft it is not only infamous to
be condemned, but also to com-
promise, as the edict justly ordains ;
for obligation based on delict differs
widely from an obligation based on
contract. But although there is no
express definition of infamy in any
part of the edict, a person is said
to.be infamous who is prohibited
from appearing in a court of law
on behalf of another, from appoint-
ing & cognitor or procurator, and
from himself serving as cognitor or
procurator.
$ 183. Finally, it is te be noticed
that a party intending to sue must
Serve a summons on his opponent
to appear; and if the summons is
disregarded, the party summoned
forfeits a penal sum according to
the provisions of the praetor's edict.
Some persons, however, cannot be
summoned without the praetor's
leave, such as parents, patrons,
patronesses, and the children of a
pstron or patroness; any one in-
fringing this rule is liable to &
penalty.
$184. Upon an appearance in
court, if the proceedings are not
terminated on the same day, the de-
fendant must give security for an ad-
journed appearance on a future day.
$ 185. The security is sometimes
with sureties, sometimes without
sureties, sometimes on oath, some-
times contains a reference to re-
cuperators, so that on default of
appearance the defendant may be
immediately condemned by the re-
cuperators in the penal sum of the
1v.$$171-187.] DE POENA TEMERE LITIGANTIUM.
singula diligenter praetoris edicto
significantur,
$186. Et siquidem iudicati de-
pensiue agetur, tanti fiet uadi-
monium, quanti ea res erit; si
uero ex ceteris causis, quanti actor
lurauerit non calumniae causa pos-
tulare sibi wadimonium promitti.
nec tamen (píuris quam partis
dimidiae, nec) pluribus quam ses-
tertium ¢ M fit uadimonium. ita-
que si centum milium res erit, nec
iudicati depensiue agetur, non plus
quam sestertium quinquaginta mi-
lium fit uadimonium.
§ 187. Quas autem personas sine
permissu praetoris inpune in ius
uocare non possumus, easdem nec
uadimonio inuitas obligare possu-
mus, praeterquam si praetor aditus
permittat.
629
security; all which is expressed at
length in the edict.
$ 186. In an action on a judgment
debt, or for money paid by a sponsor,
the sum of the security is equal to
the sum in dispute. In other cases
it is the amount which the plaintiff
swears that he honestly believes to
be necessary to his security, provided
that it is not more than half the
sum in dispute, nor exceeds a hun-
dred thousand sesterces. If, for
instance, the sum in dispute is a
hundred thousand sesterces, and the
action is not brought to recover a
judgment debt or money paid by a
sponsor, the penal sum of the security
conditioned for reappearance may
not exceed fifty thousand sesterces.
$ 187. Those persons who cannot
be summoned to appear without
leave of the court cannot be com-
pelled to give security for the ad-
journed appearance without similar
permission,
§ 171. From the duplication of damages against a defendant
who denied his delinquency under the lex Aquilia, 3 § 216, and
against a heres charged with a legacy in the form of condemnation,
§ 9; and from the terms, dare damnas esto = dare judicatus esto,
employed both in the lex Aquilia, 8 § 210 comm., and in bequest by
the form of condemnation, 2 § 201, it may be inferred with much
probability that both the author of unlawful damage and the heir
charged with a legacy by words of condemnation were subject, in
the older period of the law, to the same proceedings as the judg-
ment debtor (judicatus); that is, in early times were suable by
Manus injectio, § 25, and in later times were bound to give
satisdatio judicatum solvi, $ 102.
Double damages, as a penalty of misrepresentation, were also
an incident of Nexum. Cum ex 12 Tabulis satis esset ea praestari
quae essent lingua nuncupata, quae qui infitiatus esset dupli poe-
nam subiret, a jureconsultis etiam reticentiae poena est constituta,
Cic. De Off. 8, 65. * While the Twelve Tables were satisfied with
requiring compensation for faults against which a mancipator
had expressly warranted, and with punishing a false warranty by
630 DE ACTIONIBUS. [xv. $$ 171—187.
double damages, the jurists imposed a similar penalty on re-
ticence.’
Constitutum was a pact (not a stipulation) promising to pay
& pre-existing debt on a certain day. If the pre-existing obli-
gation was a natural obligation of the promisor, the constitutum
converted a natural into a civil obligation; if it was the obligation
of another person, it operated as a guaranty.
As an extremely easy means of transforming naturalis obligatio
into civilis obligatio, that is, of arming a creditor with the sharp
remedies of the civil law, the invention of the Consensual contract
of Constitutum sufficiently explains, as already suggested, the
desuetude of the Literal contract of Expensilatio, a process which
the ancient Romans employed for the same purpose. It has the
advantage over Stipulatio of being practicable inter absentes, and
of leaving the prior obligation in force. Actio Constitutoria had
a Condemnatio incerta; Si paret Numerium Negidium sestertium
decem millia Aulo Agerio soluturum se constituisse, eamque pecu-
niam cum constituebatur debitam fuisse ; Quanti ea res erit, tantam
pecuniam judex Numerium Negidium Aulo Agerio condemnato :
si non paret, absolvito..
In Condictio and Constitutum the sponsio was optional (permit-
titur): in Interdicts it was compulsory, § 141. Bethmann-Holl-
weg, $ 96.
§ 175. A charge of calumny implies guilty knowledge or un-
lawful intention (dolus), the Contrary action implies unlawful
ignorance, that is, recklessness or want of consideration (culpa,
temeritas).
$ 176. In three personal actions each party was considered as
both plaintiff and defendant and had to take both the oath of the
plaintiff and the oath of the defendant. Qui familiae erciscundae
et communi dividundo et finium regundorum agunt, et actores sunt
et rei, et ideo jurare debent non calumniae causa litem intendere,
et non calumniae causa infitias ire, Dig. 10, 2, 4. ‘In partition of
inheritance, dissolution of joint ownership, and tracing of bound-
aries, both parties are equally plaintiff and defendant, and therefore
must swear to the good faith of both the suit and the defence.’
In the time of Justinian the action of calumny, the Contrary
action, sponsio and restipulation had become obsolete, and in
their place the losing party was condemned in costs, and the oath
received development, being always administered to both parties
rv. § 171-187. ] LIBELLARY PROCEDURE. 631
and their advocates, Inst. 4, 16, 1. ‘Instead of the old checks
the oath of the parties and their counsel has been introduced, and
the condemnation of the unsuccessful litigant in the costs of his
adversary,’ Cod. 8, 1, 14. ‘The counsel at the commencement of
the hearing, after the exposition of the bill and answer, shall touch
the holy Gospels and swear to do their utmost for their clients as
far as they believe their cause to be just, but not knowingly to
support the wrong, and if in the course of the proceedings they
should change their opinion, to retire from the cause. Payment
of coste by the loser of the cause was introduced by a law of Zeno,
A.D. 486.
§ 184. Vadimonium, cautio judicio sisti, must be distinguished
from the security judicatum solvi. It only referred to appearances
in jure, and was required whenever there was an adjournment,
whereas security judicatum solvi was only required from the de-
fendant in real actions and in certain exceptional personal actions,
§ 102.
In procedure by cognitio extraordinaria, the in jus vocatio,
summons of the defendant by the plaintiff, was superseded by
the evocatio, summons of the defendant by the magistrate through
his lictor. Obedience to this summons was compelled by a fine
of which we have the formula in Gellius, 11,1. * As M. Terentius
on citation has neither answered nor been excused, I fine him in a
Bingle sheep. If the defendant continued contumacious he was
summoned to appear by three proclamations (edicta) at intervals of
ten days, and finally an edietum peremptorium was issued in which
the magistrate threatened to hear and decide the case in his ab-
sence, in default of his appearance, which was done, if he continued
disobedient, Dig. 5, 1, 68, &c.
Procedure before a judex was properly called actio, before the
praetor, persecutio, Dig. 50, 16, 178, 2. ‘ Persecutio is the proper
name for proceedings before the praetor, as in trusts and other
claims which are not triable by an ordinary judex.'
The Libellary procedure which existed in the time of Justinian,
having superseded the Formulary procedure, was essentially the
same as cognitio extraordinaria. Instead of the summons before
the praetor (in jus vocatio) and notice of the action which the
plaintiff meant to bring (editio actionis) with which the Formulary
procedure commenced, Libellary procedure began with libellus
conventionis and commonitio. The libellus conventionis was a
632 DE ACTIONIBUS. [1v. $$ 171-187.
writing addressed to the court, signed by the plaintiff, stating his
cause of action, and binding himself to proceed to Litis Contestatio
within two months at latest, or pay twice the costs up to thirty-six
aurei, to prosecute the suit to judgment, and pay the coste in the
event of losing the cause: it was a form of suing out a writ or
summons. Thereupon followed an interlocutio of the court, that is,
a commonitio, corresponding to the original writ, addressed to the
defendant and served on him, not by the plaintiff but by an officer
of the court (executor) along with the libellus. The defendant
then paid a fee (sportula) to executor proportioned to the amount
of the claim; delivered his answer or counter-declaration (libellus
contradictionis, responsionis) signed by himself and acknowledg-
ing the date of the reception of the libellus; and either gave
cautio judicio sisti, security for his appearance in jure for the de-
finitive appointment of the trial (judicio ordinando) and for his
continuance to the close of the trial (cautio de re defendenda), or
was liable to incarceration.
Gaius has given us no information concerning Appeal. Under
the republic we hear of no right of Appeal in civil suits: it appears
however with the empire, and indeed with the first emperor. The
following series of Appeals in civil suits was instituted by Augus-
tus: From the Judex to the Praetor who appointed him: from the
Praetor to the Praefectus urbi: from the Praefectus urbi to Caesar.
In the provinces a Vir consularis, appointed for the purpose, took
the place of Praefectus urbi, Suetonius, Augustus, 33.
For the constitution of the courts in the periods of Legis actio,
Formula, Libellus, the student should consult Bethmann-Hollweg's
Roemischer Civilprozess.
ADDENDUM.
FORMAL, ABSTRACT, AND SIMULATIVE DISPOSITIONS.
Tue following observations borrowed from Ihering are supple-
mentary to the statements on the nature of FORMAL contracts.
The contracts which in this treatise have been designated as
FORMAL are sometimes from a different point of view called ABsTRACT,
and an examination of the meaning of this term may throw light
on the function for which Formal contracts were invented by juris-
prudence and which this term expresses. The explanation of the
ierm turns on two conceptions: the Cause of an obligation (causa
obligationis) and the Form of a disposition: the cause alone needs
elucidation.
A unilateral contract, consisting merely of a promise by one
party and an acceptance by another, is the result of a decomposition
of an actual transaction of commerce and life: actual transactions
are always (to set aside for the present the case of Donation) bila-
teral The unilateral convention conferring a benefit on A and
imposing a burden on B is always accompanied by another uni-
lateral disposition burdensome to A and beneficial to B. The two
unilateral dispositions are reciprocally cause and effect: when one
is regarded as the causal factor, the other must be regarded (if we
may coin a term) as the sequent or dependent factor of the compo-
site or bilateral transaction.
Thus Mutuum, if we take one factor, is the promise to pay a sum
which the promisor has received from the promisee : if we take the
other factor, it 1s the alienation of property to a person who promises
to reconvey its equivalent to the alienor. Depositum and Commo-
datum, if we take one factor, are promises to restore Detention which
has been received from the promisee: if we take the other factor,
they are a delivery by a depositor or lender of Detention which
the depositary or borrower promises to redeliver. In Pignus there
is & similar delivery and promise to redeliver Possession. Societas
is a promise by a partner to contribute towards the attainment of
634 ADDENDUM.
a common end towards which the other partner promises a like contribu-
tion. In Mandate, there is, on the one side, a promise to perform
something a£ the charge and expense of a principal: on the other,
a grant of authority to deal with the property of the grantor ío
a person who promises obedience to the instructions and devotion to
the interests of his principal. Here the italicized words show the
causal factors which the various unilateral dispositions require for
their support: and similarly all other unilateral pacts might be
shown to be dependent factors of compound bilateral transactions.
Each correlated unilateral disposition is both cause and effect.
Each is a lever by which the will of one of the contractors is moved.
Each is the efficient or motor cause of the other: and (as wills
are only moved by motives or ends) each is the final cause of the
other.
Although they are thus reciprocally dependent, yet generally in
practice one habitually precedes, and thus appears to be the causal
factor; while the one which habitually follows appears to be the
sequent or dependent factor. This is always the case in Real con-
tracts, where one disposition has always passed beyond the limits of
mere convention into an alienation of property (mutuum, name-
less contracts: do ut des, do ut facias): alienation of possession
(pignus): alienation of detention (depositum, commodatum): or
performance of service (nameless contracts: facio ut des, facio ut
facias).
The Form of & disposition is what we have elsewhere called its
Declaration. All dispositions have two elements or aspects, one
external or corporal, the other internal or mental. Internally they
are the Intention of a disposer or disposers; externally they are the
expression or manifestation of this intention.
FoRMAL contract separates the sequent from the causal factor
of a bilateral convention, clothes the intention in a strongly marked,
sometimes strangely charactered, external expression, manifestation,
or FORM, in exact conformity to the prescription of archaic law or
primeval custom, and thus constitutes a unilateral convention valid
by form. Form xss contract is bound by no requirement of Form
and has no validity in isolation from its cause. FORMAL con-
ventions from the separation or abstraction of the sequent from
the causal factor, are appropriately called ABsTRACT; while for
the opposite reason FORMLESS conventions may be denominated
CONCRETE.
ABSTRACT CONVENTION. 635
Abstract conventions sometimes contained in their formalities a
shadowy recognition of their departure from the concrete realities
of life—a confession of the necessity of a supporting Cause in actual
commerce ; but sometimes contained no such avowal. Thus Nexum
and Expensilatio contained the phantom of a money loan, the ana-
logon of the ‘ Value received? clause in a modern bill of exchange.
But this recognition was not universal; for Stipulatio, whatever
may have been its original form, (—if derived from Stips, the word
suggests prepayment by the promisee: if connected with Stipes, it
merely signifies a binding formula—) in the shape with which we
are acquainted does not hint as a motive or cause of the advantage
conferred on the promisee any compensating burden that he has
previously borne.
The function of ABsTRACT conventions, the purpose for which
they were invented, is obviously the facilitation of the Proof of
rights and duties by means of the simplification of their Title. The
more comprehensive the conditions of the Title to which a right is
annexed, the more complicated and troublesome will be its Proof.
The causal factor of Formless contracts yields to a fraudulent debtor
at least as many positions where he can intrench himself as the
sequent factor. The necessity imposed on the plaintiff in an action
on a Formless contract of proving the existence of an adequate cause
doubles his burden of proof: Abstract conventions reduce this
burden to a fraction.
From the statement, 8 $ 92 comm., that a certain evidence of the
contract is an integral part of Formal but not of Formless contracts,
that Formal conventions, in other words, take up into their essence
a certain preappointed evidence, while Formless contracts are com-
plete independently of this, it might be inferred that the elements
of the Formal contracts were more complex than those of the Form-
less: but this would be an erroneous conclusion. The admission of
evidentiary matter into the essence of the Formal or Abstract con-
vention is more than counterbalanced by the exclusion of the causal
factor. 'The evidentiary matter is something visible and audible
and easy of proof and adjudication ; prescribed, indeed, for the very
reason that it is so easy of proof and adjudication: whereas the
causal factor, involving a question of ulterior as well as of
immediate intention, may furnish scope for endless subterfuge and
. controversy.
The validity of Formal contracts irrespective of the causal factor
636 ADDENDUM.
was to a certain extent infringed in later jurisprudence by the
admission of the Exceptio non numeratae pecuniase. For the
space of two years after a stipulatio the creditor who sought to
enforce the contract was under the necessity of proving the
existence of the causa (numeratio pecuniae): to this extent, then,
Stipulatio was reduced to the disadvantageous position of a Form-
less contract, 4 § 116 comm.
Format dispositions were not confined to the sphere of contract :
in the sphere of alienations Traditio is Formless while Mancipatio
and In jure cessio are Formal. Formal alienations present the same
contrast that we noticed between Formal conventions. Mancipatio
by its simulation of a purchase and the payment of purchase money
makes the same shadowy recognition of a causal factor that Nexum
and Expensilatio made by the fiction of a loan; while in Jure
cessio (if we can speak with confidence of a process about which
we know so little) resembled Stipulatio in contammg no such
recognition. ;
Ihering who has handled this topic, § 55, applies the term
ABSTRACT to Formal alienations. When, however, we compare
Formal and Formless alienations we find the terms Abstract and
Concrete not so applicable to alienations as they were to conven-
tions, and for this reason: in Formless alienation there is as com-
plete an ABSTRACTION or severance of the sequent from the causal
factor as there is in Formal; and Tradition is as unilateral a trans-
action as Mancipation or Judicial Surrender.
This assertion may seem inconsistent with the doctrine (2 § 65
comm.) that, to constitute a valid alienation, Tradition must be
preceded by some justa causa, Donatio, Contractio, or Solutio. The
preceding disposition, however, is not required in order to form
the causal factor of a bilateral disposition, but in order to furnish
evidence of the Intention required for a unilateral disposition: to
prove the existence of animus transferendi dominii, without which
Tradition would be a Form without a substance, would want the
internal element it requires in order to amount to a Disposition.
Once let the sequent factor, the intention requisite for a unilateral
disposition, be proved, and the justa causa, the donandi, credendi,
solvendi animus is immaterial. Thus a misunderstanding between
alienor and alienee respecting the nature of the transaction, the
one intending a loan the other a donation, or the one intending.
the discharge of a debt imposed by testament the other the dis-
FORMAL ALIENATION. 637
charge of a debt imposed by stipulation, is immaterial: because
the intention of donation and of loan, of paying a legacy and of
paying a stipulated debt, alike involve the animus transferendi
dominii. Quum in causis dissentiamus, non animadverto cur in-
efficax sit traditio: veluti si ego credam me ex testamento tibi
obligatum esse ut fundum tradam; tu existimes ex stipulatu tibi
eum deberi Nam et si pecuniam numeratam tibi tradam donandi
gratia, tu eam quasi creditam accipias, constat proprietatem ad
te transire, nec impedimento esse quod circa causam dandi atque
accipiendi dissensimus, Julian, Dig. 41, 1, 36. An error in respect
of the causa may be sufficient to entitle an alienor to condictio
indebiti or condictio sine causa; i.e. to a suit for reconveyance for
want of consideration: but it does not prevent the transmuta-
tion of ownership in the first instance: and if the property
passes onward to a third person the alienor cannot reach it in
his hands, but has only a personal action against the original
alienee.
In one particular instance, by special statutory enactment, the
causa traditionis is material to the efficacy of Tradition. "Tradition
solvendi animo, when the solutio intended is the performance of
a contract of sale, operates no transmutation of property except in
sales expressly on credit until the purchase money is paid or security
is given for its payment. This, as we have seen, 2 § 65 comm., was
& provision of the Twelve Tables Mancipation and Judicial sur-
render were not thus restricted in their operation, but transferred
ownership irrespectively of the payment of purchase money. In
Mancipation the requirement of the Twelve Tables was deemed
to be satisfied by the simulation or payment (isque mihi emptus
est hoc aere aeneaque libra); and possibly, as Ihering sug-
gests, the requirement of the Twelve Tables was the very reason
why the simulation of payment was introduced into this solemnity.
In this single point, then, Mancipation and Judicial Surrender
were more completely isolated from their causa than Tradition:
but with this exception Formal and Formless alienations were
equally ABsTRACT. Both operated transfer of dominion in spite of
any flaw in the causa. If such a flaw existed in either a Formal
or a Formless alienation, it only gave the alienor a personal action
(condictio) against the alienee for reconveyance. He could not re-
cover the property if it had passed out of the hands of the first
alienee into those of a second.
638 ADDENDUM.
If we inquire why Formless alienation was allowed to have
validity irrespectively of the causal factor, we shall find the reason
to be, that Tradition or parting with possession, though a Formless
proceeding, is an act of so serious a character as effectually to
preclude all idea of indecision—to prove that the parties had
reached the stage of definitive resolution. Accordingly the inten-
tion of transferring ownership when manifested by Tradition seems
to deserve all the efficacy that could be imparted by the observance
of the most solemn Forms.
As in the later jurisprudence Stipulatio was robbed of part of
its efficacy by the Exceptio pecuniae non numeratae, so in the later
period of Roman law Alienations whether Formal or Formless were
deprived of part of the trenchancy of their operation by the actio
quod metus causa and Restitutio minorum, impersonal remedies
(in rem) which reached the property to whatever hands it might
have arrived by the effect of subsequent alienations.
If, then, Formal alienations were not simplifications of title in
virtue of any greater ABSTRACTNESS than was possessed by Form-
less alienation, for what other advantage were they introduced into
commerce ? by what other attribute were they a facilitation of Proof ?
They facilitated proof (1) of the specific intention of a disposer
against an allegation of a different intention, and (2) of the exist-
ence of intention against the denial of all intention.
(1) Tradition might be made with the design of merely trans-
ferring Detention. Such was its effect in Depositum, Commodatum,
Mandatum, Locatio. Or, secondly, it might be made with the
purpose of transferring something more than Detention, namely
Possession. Such was its effect in Pignus and Precarium. Or,
thirdly, it might be made with the intent of transferring Property,
as in Donatio, Mutuum, Solutio. Which of these intentions
prompted a given Traditio might be extremely diffieult to prove.
The difficulty vanishes in Mancipation and Judicial Surrender.
Their forms comprehend a most emphatic and trenchant expression
of intention. ‘Iam invested with dominion’ (hune ego hominem
meum esse aio) is the exclamation of the alienee, confirmed by the
assent of the alienor, in both modes of Formal alienation.
(2) Formless dispositions whether alienations or conventions may
leave a doubt not only which of several intentions governed a pro-
cedure but whether any intention at all had been matured in the
minds of the negotiators. Had the parties passed the stage of mere
FORMAL ALIENATION. 639
contemplation, inclination, preliminary discussion, were they still
vacillating, now yielding to an attractive prospect, now receding
from half-made concessions? Or had cupidity and timidity, desire
and hesitation, given place to final decision and deliberate resolve ?
It is obvious that the formalities o£ the solemn modes of contract
were invented for the purpose of excluding all doubt from the
answers to these questions.
Beginning these remarks we adjourned the consideration of Dona-
tion, which may now be noticed. Unilateral dispositions, we have
seen, do not exist in the actual world unaccompanied. Each im-
plies another on which it leans. Intention to incur a loss has its
final and efficient cause in intention to procure a gain. If this was
universally true we might say that all dispositions were bilateral:
i. e. that in all a pecuniary loss incurred at one stage of the trans-
action is balanced by a pecuniary gain accomplished at another.
This holds of all mercantile transactions which are the bulk of those
that occupy the attention of jurisprudence. The market, however,
is not the whole of the world, nor are mercenary acts the whole of
life; and there is such a thing as a disinterested disposition, a
disposition wherein à man incurs a loss to which the causa or
motor factor is the intention not of counterbalancing gain in
another part of the transaction, but of pure and simple and un-
requited liberality.
Donation may be found in the sphere either of Dominion or of
Obligation ; it may be accomplished either by alienation or by
promise: the intention of liberahty may be consummated either by
Tradition or by Stipulation. Donation, that is to say, is one of the
eausae obligationis as well as a justa eausa traditionis: and it was
in contemplation of a contract animated by such a cause that we
abstained when beginning this note from saying unreservedly that
all actual conventions were bilateral.
I will seize the present opportunity of supplying an omission in
the commentary and noticing another feature common to many
Formal dispositions.
The FORMAL dispositions of Roman jurisprudence were frequently
SIMULATIVE. When a new juristic purpose was to be accomplished,
the method of jurisprudence was, instead of creating for it by an
effort of imagination a new corporeal form, to lay hold of some
existing disposition, and wrenching it more or less completely from
ite original basis and original uses, to employ ite more or less
640 ADDENDUM.
twisted and distorted form as a vehicle or incorporation of the new
intention. The new intention is the reality: the original intention
is divorced from the form once its own, and now is merely simu-
LATED. "Thus the festuca wielded in Sacramentum represente the
weapon intended to be used in a duel, the older mode of ascertain-
ing rights. Judicial surrender (in jure cessio) is intended to effect
a transmutation of ownership from person to person: in form it is
a judgment respecting an already existent ownership. Nexum
and Expensilatio were intended to operate novations, to transform
equitable into legal obligation: in form they both were loans of
money. Mancipation a solemn form of conveying dominion
simulated a sale and the accompaniment of primeval sales, the
weighing of the uncoined masses of bronze that served as purchase
money. The form then, instead of bemg the natural execution
and expression of an intention, has but a remote correspondence
to the end which it embodies, and sometimes may be called
SYMBOLIC: e.g. the production of the scales and bars of bronze
and pantomime of weighing ih Mancipation was the natural
mode of executing an archaic sale, but is merely a SYMBOLIC or
hieroglyphic expression of the transmutation of dominion. Some-
times a mimetic disposition became itself the object of subse-
quent mimicry. Thus while Mancipation was a fictitious sale
(imaginaria venditio, 1 § 113), Testament was a fictitious Man-
cipation (imaginaria mancipatio, Ulpian 20, 2), i.e. the simulation
of a simulation.
The Simulative character was not a universal feature even of
the older Formal dispositions: for instance, Stipulation seems to
have had nothing mimetic in ita form: while later jurisprudence,
when it had to invent a form, never adopted the symbolic style.
Rigorous forms were prescribed as a condition of the validity
of various dispositions: e.g. the presence of a certain number of
witnesses for the execution of a Will: declaration before a notary
for a guaranty by a woman: memorandum in the official records
of a magistrate (actis, gestis insinuare) for donations of more than
500 solidi: none of which were simulations of any more primitive
procedure.
The degree of integrity or mutilation in which the primeval
disposition persisted in the modern institution varied in different
instances. Sometimes the old proceeding imposed all its rules on
the new institution: more commonly many of ite aspects were
SIMULATIVE DISPOSITIONS. 641
effaced and only isolated incidents continued in force. The pro-
cedure which involved Coemptio, 1 § 118, was applied by the
ingenuity of later jurists to accomplish three purposes never
dreamed of by those who presided over its introduction: the
extinction of the sacred rites by which the estate of an heiress
was burdened ; the change of guardian by a woman at the period
when all women were under wardship; and the acquisition of
testamentary capacity by a woman at a time when widowhood
was the only title by which it could be acquired. It was a
complicated process and consisted of three factors, each of which
was an archaic institution: (1) a Hand-marriage (in manum
conventio) accompanied with a fiducia for remancipation; (2) a
remancipation accompanied with a fiducia for manumission; (3)
@ manumission and consequent wardship. Of these factors the
Hand-marriage was a pure unreality: it was divested of reality
by the accompanying fiducia; yet one of its incidents continued
in force, the transfer of the obligation to the sacred rites from
the heiress to the coemptionator. The second act was so far an
unreality that it was no longer the sale of a wife by her savage
lord in exchange for some more coveted commodity: but it was
real so far as it subjected the remancipated woman to capitis
minutio. The manumission was unreal so far as it implied a
vindication into freedom or a liberalis causa and an escape from
the hardships of bondage: but it was real so far as it had the
effect of making the manumitted ex-bondwoman the ward of her
manumitter.
Emancipation, 1 § 132, was a process which consisted of four
mancipations and three manumissions. The first three mancipa-
tions were each accompanied by a fiducia, p. 94, of the alienee:
the first two by a fiducia binding the alienee to manumit the son,
the third by ‘a fiducia binding the alienee to remancipate the son
to the father. By the final manumission the parens manumissor
became the patron, p. 822, of his son. Here we have another
ceremony which employed a primitive disposition divested of its
natural motive. The independence of the son whose father had
three times sold or leased his patria potestas over him to a
stranger was originally enacted by the Twelve Tables as a
punishment for an odious and unnatural exercise of parental
rights. In later times the mancipation of the son for the sake
of its legal consequences was an act of self-abnegation on the part
Tt
642 ADDENDUM.
of the father; a means of promoting the son to an independent
position, the status of head of a household.
The positive and arbitrary character of sIMULATIVE dispositions
displays itself in the fact that the laws of the original dispositions
which they welded into their substance were neither consistently
regarded nor consistently disregarded. (A) Sometimes they were
regarded in spite of the inconvenience they occasioned: (B)
sometimes convenience prevailed: the new institute acquired an
independent position; and logic and archaeology were set at de-
fiance.
(A) The form of Judicial surrender could not be employed for the
acquisition of property by the agency of an inferior (son or slave)
because such a person could not be a plaintiff in a genuine vindi-
eatio. Hence the inferior could be an instrument for acquirmg
a rustic servitude, because he could be a party to a mancipation,
but not for acquiring an urban servitude, because this could only
be conveyed by Judicial surrender, 2 § 29.
In Mancipatio the payment by bars of bronze was as fictitious
as the apprehensio or taking possession; and yet it sufficed to
satisfy the requirement of the Twelve Tables whereby in Sale and
delivery the passing of property was suspended until payment of
the purchase money.
Manumission of the son by the emancipating father from the
shadowy state of mancipium invested the latter, if he survived his
son, with the serious pecuniary rights of patronus against his testate
or intestate succession.
Women were incapable of Adrogation because this solemnity
involved a fictitious assembly of the Comitia Curiata; and in such
an assembly women were not allowed to be present.
In the mancipatory will the Familiae emptor was originally the
appointed successor; and therefore, to exclude interested testimony
(domesticum testimonium) persons united to Familiae emptor by
the bond of patria potestas were disqualified for the róle of witness.
The disqualification was continued, in spite of the inconvenience
it would occasion, when the familiae emptor was a mere fiction ;
and, what is more extraordinary, legatees and persons united to the
true successor were admissible as witnesses although the policy of
the legislator was thereby entirely defeated (totum jus tale contur-
batum fuerat, Inst. 2, 10, 10). The requirement of testamenti
factio passiva at the time of the making of a will, as well as at the
SIMULATIVE DISPOSITIONS. 643
time of the testator’s death and the time of acquisition by the
successor, was, according to Savigny § 393, only an irrational
consequence of the simulation of Mancipium in a will.
(B) In the following instances on the contrary the laws of the
simulated institution were disregarded. Hereditatis petitio being
a form of Vindicatio we might have expected that any kind of
inheritance when once vested would be transferable by Judicial
surrender or fictitious vindication, just as any form of inheritance
could be litigated by genuine hereditatis petitio. But we find that
only the intestate succession of a collateral (legitima hereditas)
could be thus conveyed, and this only before it had vested by aditio
in the alienor, 3 § 85.
In Mancipatio, although the fictitious payment sufficed for the
transfer of dominion, yet it did not suffice for the purpose of making
the alienor subject to auctoritas, liability to repay twice the pur-
chase money in the event of eviction, Paulus, 2, 17, 1.
Again, the Census, like a year of jubilee, appears to have
liberated from genuine bondage; but not to have broken the
fictitious bondage of a son who was in the course of emancipation,
1 § 140.
Coemption transferred to the husband the universal estate of the
wife, 2 § 98. We may infer e contrario that it had not a similar
effect on the property of a woman who merely made a coemption
for the purpose of changing her guardian or acquiring testamentary
capacity.
The genuine sale of a wife was forbidden at an early period under
the severest sanctions: this did not prevent the simulated sale (re-
mancipatio) of a woman by her coemptionator: i.e. the simulating
disposition when once established was free from the supervening
rules of the simulated disposition.
A Testament affected to be a Mancipation: but juris univer-
sitas, the subject of testament, is not found in the catalogue of
mancipable things (res mancipi): a testament was revocable, a
mancipation irrevocable: a mancipation could not have its opera-
tion suspended or made contingent on a condition (p. 384), a
testament was a disposition de futuro and might be conditional :
a mancipation only conveyed dominion; nexum, which imposed
obligation, though cognate, was a distinct institution: testament
both invested the successor with dominion and subjected him to
obligations: mancipation only affected the alienor and alienee,
Ti2
testament conferred nights on legatees, i.e. strangers who had in no
way co-operated in the execution of the testament. The sacrifice
of reality to fiction by the slavish adherence to the rules of do-
mesticum testimonium makes it the more remarkable that the
testament should have burst asunder so many other restrictions of
mancipation. Ihering, Geist des Roemischen Rechts, § 58.
APPENDIX.
SOME conjectural readings, principally by Krueger, too uncer-
tain for admission into the text, but followed more or less closely
in the translation, are here appended.
1§118. nam feminae a coemptionatoribus codem modo possunt
mancipari quo liberi a parente mancipantur; adeo quidem, ut
quamvis ea sola apud coemplionatorem filiae loco sit, quae ei nupfa
sit, tamen nihilo minus, &c.
16132. At the end, cf. Epit. 1,6,8. *'Tamen cum tertio manci-
patus fuerit filius a patre naturali fiduciario patri, hoc agere debet
naturalis pater, ut ei a fiduciario patre remancipetur et a naturali
patre manumittatur, ut & filius ille mortuus fuerit, ei in hereditate
naturalis pater, non fiduciarius, succedat."
1 $ 182 a. ‘Ei, qui liberum caput e causa mancipii manumittit,
eadem jura in ejus bonis competere, quae patrono in bonis liberti com-
petunt ;’ for the remainder of the § cf. Epit. 1, 6 § 3 ‘ Feminae vel
nepotes masculi ex filio una emancipatione de patris vel avi exeunt
potestate et sui juris efficiuntur. Et hi ipsi quamlibet una manci-
patione de patris vel avi potestate exeant, nisi a patre fiduciario
remancipati fuerint et a naturali patre manumissi, succedere eis
naturalis pater non potest, nisi fiduciarius, a quo manumissi sunt ;
nam si remancipatum eum sibi naturalis pater vel avus manumiserit,
ipse ei in hereditate succedit.’
] $ 184. * Praeterea parentes, liberis in adoptionem datis, in potes-
tate eos habere desinunt: et in filio quidem, si in adoptionem datur,
tres mancipationes e£ duae,’ &c.
1 § 186. ‘Praeterea mulieres quae in manum conveniunt, in
patris potestate esse desinunt, sed in confarreatis nuptiis de flaminica
Diali senatusconsulto ex relatione Mazimi,’ &c. And six lines fur-
ther; ‘Coemptione autem facta mulieres omnimodo potestate parentis
liberantur.
646 APPENDIX.
2§ 14. after rusticorum; cf. Epit. 2, 1, 3. * Praediorum urba-
norum jura sunt velut jus a//iues tollendi aedes, et officiendi /uminibus
vieini aedium, aut «ow extollendi, ne luminibus vicini officiatur, ilem
fluminum et stilicidiorum jus, id est ut vicinus flumen vel stillicidium
in aream vel in aedes suas recipiat; item cloacae immittendae et
luminum immittendorum. Praediorum rusticorum jura sunt velut
via, iter, actus, item pecoris ad aquam adpulsus, item jus aquae
ducendae.
2§ 14 a. ‘Est etiam alia rerum divisio: nam aut mancipii sunt
aut nec mancipii. Mancipii sunt velut fundus in Italico solo, item
servi et ea animalia quae collo dorsove domari solent, velut boves
equi muli asini; item servitutes praediorum rusticorum. Nam
servitutes praediorum urbanorum nec mancipii sunt.’ | (C£. Dig. 1, 8,
1,1. Inst. 2, 2, 8).
2 6 15. ‘sed quod diximus ea animalia quae domari solent, man-
cipii esse, quomodo intelligendum sit, quaeritur, quia non statim ut
nata sunt, domantur. Et nostrae quidem scholae auctores síaíim
ut nata sunt,’ &c.
2 § 66. * efiam si occupando ideo res adquisierimus."
2 § 82. accipientis sine tutoris auctoritate.
2 § 129. after pronepotes ; * nominatim exheredari Jubet, feminini
vero inter ceteros; qui nisi fuerint ita exheredati, promittit eis
contra tabulas bonorum possessionem."
2 6 149 a. after non sit; ‘cum si agnati petant hereditatem excep-
tione doli mali ex coss/itutione imperatoris Antonini removeri
possint."
2 $150. ‘Sane /ege Julia scriptis non aufertur hereditas, si
bonorum possessores ex edicto constituti sint; nam ita demum ea
lege bona caduca fiunt et ad populum deferri jubentur si defuncto nemo
heres vel bonorum possessor existat."
2 6$ 151 a. after hereditatem ; ‘per exceptionem doli mali repel-
letur, si vero nemo ab intestato bonorum possessionem petierit,
fiscus scripti heredi quasi indigno auferet hereditatem, ne ullo
modo ad eum quem testator heredem habere noluit, perveniat here-
ditas,’
2 6 287. ‘ideoque etsi secundum mentem testatoris is qui tutor
datur, poenae nomine, &c.
8 6 48. ‘ztaque sive auctor ad testamentum faciendum factus erat,
aut sibi imputare debebat, quod heres ab ea relictus non erat, aut
ipsum ex testamento, si heres factus erat, sequebatur hereditas . . .
APPEN DIX. 647
nec enim ullus olim ab intestato heres vel bonorum possessor erat,
qui posset patronum a bonis libertae invitum repellere.
8 644. eique ex bonis ejus quae centum milia sestertiorum plurisve
reliquerit patrimonium, si testamentum fecerit, dimidia pars de-
beatur, si vero intestata liberta decessit tota hereditas ad palronum
pertinet.
8 § 46. * Ohm quidem eo jure (utebantur), quod lege x11 tabularum
patrono datum est, praetor autem non nisi virilis sexus patronorum
liberos vocat; filia vero ut contra tabulas testament,’ &c.
8 $69. ‘patronus heredes instituerit, ex isdem partibus bona
Latini, si patri heredes existant, ad eos pertinere, &c., &c.
8 § 80. *velu/i si peregrinus sit bonorum emptor.’
9 $81. ' Jtem quae debita sunt ei cujus fuerunt bona, aut ipse, &c.
. * debentur, et ideo de omnibus rebus utilibus actionibus et expe-
riuntur et conveniuntur, quas zz sequenti, &e.
8 § 95. ‘Si quis interroganti Dari Spondes ? respondeat Promitto
vel Dabo, an recte obligetur; aut si quis interroganti Promittis ?
respondeat 'OuoAoyó an recte obligetur.'
8 § 108 a. ‘ Alia causa est, si ita stipulatus sim mihi aut Titio
Dari Spondes ? quo casu constat mihi solidum deberi et me solum ex
ea stipulatione agere posse, quamquam eciam Tio solvendo liberaris.’
In the translation for a/so read alone.
8 $117. quia enim nobis ut post mortem nostram detur stipu-
lando.
4 $ 1831. * Obligatio in judieium deducitur, ex ea condemnatio
fieri non potest neque rursus de ea agi potest.’
4 6 1831 a. ‘tradi, vel tradita ea de evictione nobis caveri, iterum
ex empto agere possimus, alioquin si praescribere (obliti) sumus,
totius,’ &e.
4 § 133. ‘per unius rei petitionem universae hereditati praejudi-
cium fieri."
46184. et siquidem ex contractu servorum agatur, tntentione
formulae determinatum [Polenaar, designatum] est, cui dari opor-
teat.
4 $ 165. ‘nisi ei res evhibeatur aut rest.tuatur, quanti ea res erit,
adversarius ei condemnetur.'
4 $ 166. ‘et qui superaverit fructus licitando,’
4 6 166. de eo inter se certant, utri fructuum perceptio interim
committenda est. Postea alter, &c.
4 $ 170. ‘ Itaque etei alias potuerit interdicto Uti Possidetis vincere,
648 APPENDIX.
tamen si cetera ex interdicto facere noluerit, per interdictum secun-
darium possessio in adversarium tranefertur.’
4§171. *Nune admonendi sumus, ne facile homines ad liti-
gandum procedant, temeritatem tam agentium, quam eorum cum
quibus agitur coerceri modo pecuniaria poema modo juris)jwramdi
religione modo metu infamiae.
INDEX.
Figures in the thicker type indicate references to the text, in the lighter to the
commentary.
Ablative facta, 3. Aotio (continued).
Acceptilatio. Surts.
form of, 413. who can bring, 4838, 434.
must be unconditional, 364.
extinguished verbal contracts, 418.
effect of, by women without guardian's
authority, 413.
partial release by, 414, 418.
A.ccossio.
meaning, 193.
examples of, 185-6, 193.
remedy for lose of ownership by, 186,
193.
adjectitia, 526.
aestimatoria, 394.
arbitraria: see formula arbitraria.
annua, 551, 552, 558.
Calvisiana, 322.
communt dividundo, relation of, to
vindicatio, 609.
confessoria, 460-62.
pd of, to English real actions,
Actio.
effect of defendant in, not giving
security, 536.
constitutoria, 630.
de peculio deque in rem verso, 524,
525, 527.
de vi bonorum raptorum.
when introduced, 439, 440.
formula, 439.
directa, under lex Aquilia, 444, 447.
ex fide bond, 520.
compared with actio stricti juris,
474-77:
as to plus petitio, 514.
as to exceptio in formula of, 583.
exercitoria, 523, 525, 527.
who may sue or be sued by, 524.
Fabiana, 322.
Jamiliae hercisoundae.
relation of, to hereditatis petitio,
609.
fiectitia.
mode of operation of, 490: see also
actio utilis.
instances of, 485-7.
manifesti, formula in, 435.
nec manifesti, formula in, 439.
honoraria.
emanated from imperium of prae-
tor, 543.
hypothecaria, 350.
in fact«m.
mode of operation, 490.
filius familias could bring, 505.
capable of plus petitio, 505.
not extinctive bar to subsequent
action, 541, 545:
see also actio utilis.
in factum praescriptis verbis, 3.
why so called, 352, 495.
nature of, 352-3.
in personam, 455, 458—60.
not identical with English per-
sonal action, 459.
when extinctive bar to subsequent
actions, 641, 545.
inatitoria, 524, 525, 527.
who may be sued by, 624.
in rem, 455, 458—60.
not identical with English real
action, 459.
how commenced, 534, 538.
not extinctive bar to subsequent
action, 541, 545.
tn jus.
a8 to plus petitio, 505 :
see formula in jus concepta,
judicati, 466.
formula of, when judicium legiti-
mum, 481.
superseded by pignoris capio, 481.
negativa, negatoria, 460-2.
analogous to English real action,
46a
effect of defendant in, not giving
security, 536.
nozalis, 528.
surrender of filius familias in,
529.
surrender of dead person in, 530.
650
Actio (continued).
compared with actio damni in-
fecti, 530.
compared with English law, 530.
changes in law as to, 530.
perpetua, 661, 552, 558.
pigueraticta, 350.
popularis, 533.
prohibiti furti, 429.
publiciana, 177.
who may sue by, 492.
in actio fictitia, 4886.
contraria, rescissoria, discussed,
3-
quasi tnstitoria, 409.
quasi Servia a, 350.
quod jussu, 528, 527.
quod metus causa.
nature of, and formula, 581-2.
when introduced, 440.
redhibitoria, 394.
Rutiliana.
variance between intentio and
condemnatio of, 486, 492.
Serviana.
actio fictitia, 486.
atricti juris.
probably older than actio ex fide
bona, 473.
compared with actio ex fide bona,
474-11.
temporalis, 551, 552, 558.
tributoria, 524, 526, 527.
utilis.
mode of operation, fictitia and in
factum, 490.
under lex Aquilia, 444, 447.
varieties of, 448.
vectigalis, 396.
Actions.
old forms of: see Legis Actiones.
forum of: see Forum.
natural classification of, 426.
ex contractu, nature of, 427.
ex delicto, nature of, 427.
may be for restoration, or a penalty,
or both, 458, 464.
when right to bring, extinguished by
death, 466.
by prescription, 466, 544; fully
discussed, 552 et seq.
by merger, 466.
by whom a person may bring or de-
fend, 531, 532-3.
limit of time as to pendency of, 544.
within which, must be commenced,
551, 551 et seq.
when barred by previous litigation,
541, 545, 546, 550.
transmission of, 551, 559-60.
what, oould be satisfied between
formula and judgment, 560,
561.
INDEX.
Actions (continued).
discussion of pleadings, &c. in, 569
et seq.
and see Actio, judicium.
Adpromissor, 381.
Adrogatio: see Adoptio.
Aditio, hereditatis.
meaning, 244, 338.
effect of, 237.
cannot be conditional, 364.
Adjudioatio.
a title of civil law, 182.
a part of formula, 493.
example of, 494.
never alone in formula, 495.
only found in three kinds of action,
406.
Adopted children.
rights of while in potestate of adoptive
father, 220.
rights of when emancipated by adop-
tive father, 220.
how affected by changes of Justinian,
229.
entitled to bonorum poesessio intes-
tati, 301.
Adoptio.
& mode of acquiring patria potestas,
83, 85. 87.
two kinds, 83.
populi auctoritate, i. e. adrogatio, 84.
form of, 86.
of impubes, 87.
mode of universal succession, 202,
335 ; but see, 337.
produced capitis diminutio mini-
ma, 336.
effect on liability for debts, 335-6,
487, 493.
summary of effect of, on rights and
obligations, 336.
imperio magistratus, 84, 8b.
form of, 103, 105-6.
effect on issue of adopted person,
104.
change in effect of, by Justinian,
87.
gave adopted person civitas of
adoptive father, 319.
Adstipulator.
origin of, 365, 369.
payment to, discharges debtor, 370.
words used by, in stipulatio, 370.
may not stipulate for more than
Btipulator, 370.
heres of, cannot sue, 370.
persons who cannot be, 370.
is employed to secure payment after
stipulator's death, 370.
bound to hand over what he recovers,
870-1.
effect of capitis deminutio of, 370,
380.
INDEX.
Adstipulator (continued),
chief function of, 380.
gradually died out, 381.
Adversaria, 384.
Aediles curules.
jus edicendi of, 26, 31.
Aerarium.
meaning, 143.
when caduca passed to, 252.
Aestimatum, 352.
Agency
acquisition of dominion by, 200.
obligationes ex contractu by, 200 ;
more fully, 366-7, 408-9.
in litigation of, adstipulator, 380.
of cognitor, 409.
germ of, hi relation of magister navis,
526.
Agnitio bonorum possessionis.
meaning, 242.
how mae, 242, 243.
Album, 47.
Alien: see Peregrinus.
Ager emphyteuticus,
carius.
meaning of, 396.
ager vectigalis assimilated to, 396.
held under special kind of contract,
emphyteuti-
397.
Ager publicus, 176.
Ager privatus, 176.
Ager vectigalis.
meaning of, 396.
assimilated to a er emphyteuticus,
3
PUE held under contract of sale
or hiring, 395.
Agnate: see Agnati.
Agnati.
definition of, 113, 296, 298.
guardianship of, 112.
nearest grade only entitled, 115.
effect of capitis diminutio on rights of,
118, 115.
alienation of lunatic’s property by, 187.
right of, to intestate succession,
296-7.
nearest grade only entitled, 296,
298—9.
date for determining nearest grade,
296, 299.
what females are entitled to succes-
sion as agnatae, 297, 298.
grant of bonorum possessio to, 300—1.
can convey hereditas in intestacy by
in jure cessio, 337,
effect of surrender of hereditas by
after acceptance, 337.
Alienation.
non-proprietors who have power of,
187.
651
Alienation (continued).
proprietors who have not power of,
187.
by pupillus, 195.
by a woman, 195.
to pupillus, 196.
to a woman, 106.
of an inheritance, 337, 337.
of res litigiosa, 583.
Alleotio, 319.
Alluvio, 186.
Annus utilis, 242.
Antoninus Caracalla.
grant of civitas Romana, 82.
as to caduca, 252.
Antoninus Pius.
protection of slaves, 58, 59, 60.
adrogation of impubes permitted, 87.
quarta Antonini, 87.
as to contra-tabular possession of fe-
males passed over in will, 217.
effect of contra-tabular possession on
legacies to conjunctae personae,
226.
constitution as to passing of property
in legacy per vindicationem, 254.
Antorinus and Severus.
constitution as to burden of proof in
actio on cautio, 581.
Appeals.
series of, in civil suits, 632.
Aquilian Stipulation, 417.
Aquilius Gallus. .
as to after-born grandchildren, 222.
invented Aquilian Stipulation, 417.
formula relating to dolus maius,
417.
Arcaria nomina.
meaning, 388.
create real obligations, 884.
Argentarius.
must recognise compensatio in for-
mula, 520, 521.
how compensatio is calculated against,
521, 523.
Aristotle.
definition of intention, 14.
negligence, 15.
voluntary acts, 21.
definition of voluntary and involun-
tary, 22.
Assignatio, 405.
Augustus.
gave jus respondendi
jurists, 33.
increased panels of judices, 47.
changed legal effect of confarreatio,
to certain
go.
enforced fideicommissa, 275.
codicils acquired legal force, 288.
lex Julia Vicesima, 374, 382.
edict as to alienation of res litigiosa,
583.
652
Austin.
definitions, 2.
sanctioned and sanctioning rights, 4.
law of persons and things, 36, 37.
meaning of title, 163.
Bailment, 397.
Bankrupt.
liability of, to personal execution, 330.
suffered loss of existimatio, 331.
did not incur capitis deminutio, 330.
after-acquired property of, liable,
Bankruptoy.
distinguished from ordinary execu-
tion, 325-6.
proceedings, 333-4, 327-9, 332-4.
effect of, upon status, 330-2.
marshalling of creditors under,
334-
acts of, 328-9.
dissolves partnerships, 400.
Baron.
as to uti possidetis, 610,
possession of superficiarius, 619.
Benefice of inventory, 241.
Beneficium.
cedendarum actionum, 379, 383.
competentiae, 497.
dirisionis, 379, 382.
excussionts, 379, 38a.
Bentham, 3.
Bethman- Hollweg.
formula of actio judicati, 481.
as to formula in action for uncertain
sum, 587.
praetor’s authority, 596.
Blackstone.
public law, 38.
personal rights, 39.
Bona fide possessor.
acquires dominium through freemen
and servi alieni, 198.
obligationes through freemen and
servi alieni, 411.
acquires dominium by usucapio, 172,
but see, 173.
after litis contestatio, is liable for
culpa, 425.
Bonitary ownership, 171, 177.
Bonitary owner.
cannot re-manumit Latinus, 52.
hereditas of re-manumitted Latinus
granted to, 52.
slave in potestate of, 59.
property acquired by slave belongs
to, 197.
Bonorum cessio : see cessio bonorum.
Bonorum distractio, 332.
Bonorum emptor.
who is, 8328-4,
]
INDEX.
Bonorum emptor (costisued).
acquires dominium by usucapio, 824.
can only sue and be sued by actiones
fictitiae, 324, 486.
must notice any cross demand in his
formula, 520, 521.
Bonorum possessio.
origin of, 215.
nature of, 301-2, 304.
re or sine re, 220-30, 232, 3032,
806
is an equitable succession, 304.
only actiones fictitiae lay in respect of,
304, 325.
merely confers bonitary ownership,
824.
changed into dominium by usucapion,
824.
how claimed and within what time,
231-2, 306.
secundum tabulas.
when will is invalid ab initio,
212, 215.
when valid will becomes invalid,
229.
not defeated by claim of Fiscus
under lex Julia, 230, 232-3.
how, and within what time, to be
claimed, 232.
to persons entitled under & will
valid by jus civile, 302.
contra tabulas.
sometimes equivalent to intestacy,
216.
to female passed over, 217.
to male not disinherited nomi-
natim, 218.
to emancipated children, 220.
to patron passed over by freed-
man, 307.
instituted suus heres might some-
times claim, 225.
intestati.
to emancipated children, 300.
to some who were made cives with
their father, 300.
to agnates who had suffered capitis
deminutio, 300, 30L
to certain females, 300, 301.
to cognates related through fe-
males, 800, 301.
io children in adoptive family,
801.
to persons entitled by jus civile,
802.
summary of classes to whom, was
successively granted, 305.
how claimed and within what
time, 306.
Bonorum sectio.
how conducted, 332.
vesta dominium in vendee, 333.
transfers juris universitas, 333.
INDEX, 653
Bonorum venditio. Children.
a mode of universal succession, 202. status of, when born of civil marriage,
grounds for ordering, 323, 328-9. 66, 74, 77.
how, was effected inter vivos, 823-4,
327-8.
how, was effected after death, 828-4.
only confers bonitary dominion, 324.
superseded by distractio bonorum,
332.
Breviarium Alaricianum, 48.
Buildings.
ownership in, 185, 192.
servitudes in respect of: see Servi-
tude, urban.
Caducum, 252.
Caligula, 47.
Capitis deminutio.
definition, 114.
effect on status, 118, 113, 115.
maxima, 114.
minor, or media, 115.
minima, 115; discussion respecting,
119 et seq.
general effect of, 116.
some arbitrary consequences of, 122.
of testator, effect of on the will, 228,
231.
effect of, on a partnership, 400,
401.
effect of, of & debtor on the debts,
487, 493.
Caracalla : see Antoninus Caracalla.
Cassius, 134.
Cautio.
what, 581.
assignment of, 406.
judicio isti, 504, 537.
judicatum solvi : see stipulatio judi-
catum solvi.
effect of giving, when money not
paid, 581.
Celsus, 134.
Censor.
edict of, 31.
power of, under Empire, 33.
power of, 117.
Census.
manumission by, 48, 45.
evasion of, effect on status, 114.
Centumvirale judicium.
excepted when legis actiones abo-
lished, 484.
procedure in, 534.
Ceasio actionum, 406.
Cessio bonorum.
origin of, 329.
benefit conferred on debtors by, 329-
32.
Chirographum.
& species of literal contract, 384.
in time of Justinian, 387.
of gentile marriage, 75, 77.
when illegitimate, 76, 77.
when status of mother changes
before birth, 79, 80.
Citizenship.
Roman : see Civitas Romana.
in municipalities, how acquired, 318.
effect of, 319.
& person might have, in several states,
319.
Civil injury, 426.
Civis Romanus.
ingenuus, 40.
libertinus, 40, 48, 45, 48.
and see Civitas Romana.
Civitas Romana.
Same ag jus quiritium, 54.
how acquired by Latini, 50-52.
conferred on whole of Italy, 49, 98,
319.
granted by Marcus Aurelius to all
who would pay for it, 82.
granted by Antoninus Caracalla to
all free subjects of Empire, 82.
effect of capitis deminutio and infamia
on, 114, 115, 116 et seq.
effect of insolvency on, 331.
Claudius.
building ships, &c. confers civitas
Romana, 51.
protection of sick slaves, 59.
marries his niece, 67.
abolishes agnatio guardianship of
women, 118.
alteration in law Terms. and Vaca-
tions, 290.
Sc. Largianum, 818, 317.
Codex.
meaning, 288.
accepté et expenst, 384.
Alaricianue, 48.
Codicillus.
origin and nature of, 285, 288.
legacy left by, must be ratified by
will, 285.
heres could not be directly instituted
or disinherited by, 285, 289.
no formality necessary, 289.
Coelebs.
definition, 252.
incapable of taking under a will, ex-
cept that of a soldier, 208, 211,
252.
incapable of taking by fideicommisea,
Coemptio.
a mode of creating manus, 87.
how transacted, 88, 91.
matrimonii causa, 88-9.
fiduciae caus, 09.
654
Coemptio (continued).
form and objects, 88, 92, 93.
operation of, as mode of universal
succession, 335, 337.
effect of, on debts of the person in
manus, 325-6, 487, 493.
Cognati -ae.
who are, 1138, 305.
how different degrees of, calculated,
305.
capitis deminutio has no effect on
rights of, 118, but see, 113-4.
change by Justinian as to right of, to
succeed in intestacy, 299-300.
related through females, grant of bo-
noruin possessio to, 300-1, 303.
limits of degree in which, are entitled
to succeed, 305.
Cognitio extraordinaria.
meaniny, 542.
in jus vocatio in, 631.
libellary Procedure essentially the
same as, 631.
Cognitor.
cannot be appointed conditionally,
394.
how appointed, 531.
why discontinued, 533.
not required to give security, 535.
Co-heres.
share of, how allotted, 251.
effect of lapse on share of, 251.
degree of diligence required of, 453.
Co-legatee.
right of, in joint or several legacy
per vindicationem, 255.
in joint legacy per damnationem,
256.
in several legacy perdamnationem,
256, 262.
in legacy sinendi modo, 258.
in legacy per praeceptionem, 260.
lapsed share of, in legacy per damna-
tionem, 255, 256, 262.
in legacy per damnationem, 256,
262.
with children, right of to caducum,
252, 257.
degree of diligence required of, 453.
Collative fact, 3.
Collocative fact, 3.
Colonatus.
meaning, 398.
antitype of copyhold tenure, 399.
Colonia, 318.
Colonus.
two distinct meanings, 398.
Comitia.
cala!a, wills made in, 45, 202.
cenluriata, enactments of, called
leges, 29.
legislative power of, ceases after
Tiberius, 29.
INDEX,
Comitia (continued).
curiata, elected king, 31.
tio sanctioned by, 85-6.
Comity of nations, 518.
Commercium.
an element of civitas Romana, 176.
a qualifeation for quiritary dominion,
176.
testamentifactio equivalent to, 209.
Commixtio.
a separable junction, 192.
produces no change of ownership, 192.
Commodatum.
a real contract, 348.
how made, 349.
rights and liabilities of parties to, 349.
must be gratuitous, 349.
theft of subject-matter of, 431, 434,
437-
degree of diligence required in, 453.
nudum pactum for interest could not
be annexed to, of money, 510.
compared with precarium, 607.
Communio ; see Condominium.
Compensatio.
in what actions, applies, 520, 521.
is in discretion of judex, 520.
when, noticed in formula, 520, 522.
in respect of what claims, applies,
521.
compared with deductio, 521.
modes of claiming, in an action,
522.
Compromise, 352.
Condemnatio.
part of the formula, 493.
example of, 494.
never found alone, 405.
how limited, 496.
was always pecuniary, 501, 507 ; but
see, 509.
may be for certain or uncertain sum,
601.
effect of claiming too much or too
little in, 512.
Condictio.
a species of personal action, 456, 463.
a legis actio, 467-8.
when introduced, 472, 472.
why 80 called, 471.
in what cases, applied, 473.
modern, not based on ancient, 485.
Surtica, 438.
formula in, 463.
lies against heres of defendant,
559.
certi, 463.
incerti, 463.
triticaria, 463.
Condition.
nature of a, 362.
different effect of, in contract and
will, 363-4-
INDEX.
Condition (continued).
not annexable to
363-4.
suspensive, 364.
resolutive, 364.
Conditional sale, 352.
Condominium.
roduced by confusio, 192.
bow partition of, is enforced, 410.
Conductor, 397.
Confarreatio.
a mode of creating manus, 87.
how transacted, 88, go.
changes in legal effect of, go.
Confiscation.
sometimes a consequence of capitis
deminutio maxima and media,
116.
dissolves partnership, 400, 401.
Confusio.
meaning, 192.
produces condominium, 192.
Connubium.
meaning, 69.
a condition of justae nuptiae, 61, 66,
6
all dispositions,
persons who have, 69.
Consensual contracts.
how made, 390.
are bilateral, 390.
different kinds of,
emptio et venditio, 389, 390.
locatio et conductio, 389, 394.
socielas, 389, 399.
mandatum, 389, 401.
how dissolved, 418.
Consensus.
meaning, 343.
essential to a contract, 343.
Consilium.
to authorise manumissions, 438.
Constantine.
father guilty of parricide, 61.
forbids marriage with brother's
daughter, 70.
introduces peculium quasi castrense,
and adventitium, 199.
abolishes penalties of childleasness
and celibacy, 252.
thirty years praescription, 552.
Constantine, Constantius, and Con-
stans.
formal words not necessary to insti-
tute heres, 214.
formal words not necessary in giving
legacies, 261.
Constantius and Constans.
Constitution of, abolished all legal
formulae,
as to legacies, 261.
as to actions, 489.
Constitutio.
definition, 25.
655
Constitutio (continued),
forms of, 25.
explanation of forms of, 30.
why, had force of law, 30.
Consul.
jus edicendi of, 31.
power of, under Emperors, 33.
Constitutum debiti alieni.
an instance of golidary intercessio, 380.
motive for introduction of, 382.
® praetorian consensual contract, 390.
Contract.
definition, 342.
essential of, 343.
divisions of, 339, 343, 344-5.
forma], meaning of, 343.
what are, 343.
. geem to rest on fiction of money
loan, 346.
peculiar characteristics of, 357.
no consideration necessary but pro-
misor may plead exceptio, 368.
in English law, 388.
formless, meaning of, 343.
what are, 343.
not valid unless promisor gets &
quid pro quo, 368.
in English law, 388.
by persons in potestate, 411, 412.
in manu, 411.
in mancipio, 411. .
freemen possessed boná fide, 411.
servus alienue, 411.
servus held in usufruct, 411.
servus communis, 411-12, 412.
how discharged, solutio, 413.
novatio, 414.
litis contestatio, 416.
in form by which made, 418,
damages for breach of, 446.
literal: see literal contract.
innominate: see innominate con-
tract.
real: see real contract.
verbal : see verbal contract.
consensual : see consensual contract.
Conventio in manum.
a mode of universal succession, 335.
effect. of, on debts of the person in
manu, 335-6.
obsolete in time of Justinian, 337.
Co-owners.
bound, inter se, quasi ex contractu,
10.
have actio communi dividundo, 4to.
rights of, to obligationes acquired by
slave, 411-12, 412.
degree of diligence required of, 453.
Co-ownership.
produced by confusio, 192.
how partition of, is enforced, 410.
Copyhold tenure.
antitype of, in Colonatus, 399.
656
Corporation : see Juristio person.
Correality.
meaning, 375.
how, may originate, 375.
point of agreement between,
solidarity, 376.
chief differences between, and soli-
darity, 377.
Co-successors.
bound, inter se, quasi ex contractu,
410.
have actio erciscundae, 410.
Creditors.
remedies of, against debtor and his
estate, 323, 324-33.
marshalling of, in bankruptoy, 334.
Cretio.
meaning, 238, 244.
vulgaris, 389.
continua, 239.
imperfecta, 245.
abolished by Justinian, 244.
Crime, 426.
Cul:
and
pa.
opposed to dolus, 16.
lata, 453, 454.
levis, 454.
levissima, 454.
Curator.
origin of, 137.
appointment of, 136.
must give security, 136.
different from procurator, 138.
distinct from tutor, 138.
appointed to others than minors, 138.
nature of obligation of, to minor,
410
degree of diligence required of, 453.
Curule aedile.
jus dicendi of, 20.
Custom.
a source of law, 34.
succession by adrogatio and conventio
in manum, governed by, 335.
Damages.
for breach of contract, 446.
under lex Aquilia, 442, 443, 444.
a means of preventing vexatious liti-
gation, 625.
Damnum infectum.
action in respect of, excepted when
legis actiones were abolished,
484.
proceedings in case of, under praetor's
edict, 484, 489.
Dare.
meaning of, in formula, 460.
Datio, 340.
Decretum.
of Emperor, 85.
as opposed to interdictum, 587.
INDEX.
Dediticius.
one off the three classes of freedinen,
who vas &, 42.
status of a, 42.
has no testamentifactio, 44, 317.
can never become a civis Ro-
manus, 44.
other disabilities of, 45.
status of descendants of a, 49.
devolution of property of a, at his
death, 316-17.
formally abolished by Justinian,
321.
Deductio.
in action by bonorum emptor, 520.
different from compensatio, 521.
how claimed, 522.
Defensor voluntarius.
meaning, 533.
eecurity given by, 540.
Delatio, 338.
Delegatio.
& species of mandatum, 404.
relation between the parties to, 404.
Deliot.
meaning, 426.
public and private, 426.
obligations arising out of, 888, 342.
Demonstratio.
a part of the formula, 403.
never found alone, 495.
when inserted, 495.
effect of claiming too much or too
little in, 513, 519.
Denarius.
change in value of, 538.
Denisation, 83.
Deportatio in Insulam.
origin of, 81.
effect of on status, 81, 115.
Depositum.
a real contract, 348.
how entered into, 349.
must be gratuitous, 349.
miserabile, 349.
trregulare, 349-50.
theft of subject-matter of, 431, 434,
437.
degree. p diligence required reepect-
Ing, 453-
Detention.
as opposed to possession, 615.
nature of, 620.
De vi bonorum raptorum actio, 439.
Dies.
comitiales, 289.
continut, 243.
fasti, 289.
Sesti, 289.
intercist, 289.
judiciarié or juridict, 343, 290.
profestt, 389.
INDEX.
Dies (continued).
utiles, 243.
Dies cedit, cedens.
as to inheritances, 252.
legacies, 252, 271.
obligations, 271.
Dies venit, veniens.
as to legacies, 271.
obligations, 271.
Diocletian and Maximian.
constitution, exchange or barter is
a real contract, 393.
all judicia made extraordinaria, 488.
time, for pleading exceptio pecuniae
non numeratae, extended, 581.
Disposition.
unilateral, 9.
bilateral, 9.
contrasted with wrongful act, 9-11.
when affected by intention, 17.
formal, 356, 633 et seq.
formless, 356.
abstract, 633 et seq.
simulative, 633 et seq.
Divestitive faots, 3.
Divorce.
how effected, 107, 108.
effect of, on capacity to take under a
will, 211.
might give husband right to retain
part of dos, 539.
Dolus.
definitions, 15, 16.
opposed to culpa, 16.
often used as synonym of Fraud, 16.
gave rise to exceptio doli mali, 582.
actio doli, 582.
was a ground for restitutio in inte-
grum, 582.
Domicilium.
definition, 320.
originis, 320.
effect of, on rights and liabilities, 320.
forum of, 515.
law of, when applicable, 516, 517.
Dominium.
place of, in the system of Gaius,
150-1.
of the state, its nature, 153.
quiritary, ex jure quirttium, 171,
175 et seq.
who may have, 176.
to what objects, relates, 176.
bonitary, is bonis, 171, 177.
of peregrinus, 171, 176.
in provincial land, 176.
how acquired by jus naturale, 184 et
seq., 188 et seq.
how acquired by jus civile, 159-60,
161, 17Y*et aeq., 175 et seq.
abandonment of, 191.
differs from possessio as to abandon-
ment, IgI.
657
Dominium (continued).
persons through whom, may be ac-
quired,
children in potestate, 107.
slaves, 197.
slave in bonis, 197.
persons in mancipio, 197.
manu, 107.
acquired through slaves held in usu-
fruct, 198.
slaves bona fide possessed, 198.
freemen bona fide possessed, 198.
originally not acquired by means of
extranea persona, 199 ; but see,
200.
bonorum possessor acquires, by usu-
capio, 324.
bonorum emptor acquires, by usu-
capio, 824.
Donatio inter vivos, 390.
Dos.
alienation of, 187, 195.
how, may be constituted, 855, 359.
surety for, exempt from lex Cornelia,
374.
effect of divorce as to, 539.
Dower: sce Dos.
Droit d'aubaine, 292.
Duplicatio.
nature and object of, 566, 585.
Duty.
definition, 2.
positive, 6.
negative, 6.
Edictum.
of Emperor, 25, 3o.
provinciale, 31.
perpetuum, 31.
repentinum, 31.
tralatitium, 31.
urbanum, 31.
Biditio actionum, 504.
Emanoipated children.
share of daughter by contra tabular
ion, 217.
need not be instituted or disinherited,
220.
when contra tabular possession is
granted to, 320, 225.
rights of, when emancipated by
adoptive father, 220.
rights of, when their father dies in-
testate, 300, 305.
claims of emancipator upon property
of, 322-3.
Emancipatio.
how effected, 102, 105, 106 : and see
Emancipated children.
Emperors.
legislative power of, 25, 30.
early, maintained show of republican
institutions, 32.
Uu
658
Emptio et venditio.
& consensual contract, 889.
how made, 390.
differs from exchange, $01, 393.
arra merely evidence of, 390; but
see, 393-
at what moment property passes by,
391.
compared with English law, 392, 393,
394.
res perit domino does not apply to,
392.
obligation of vendor under, 393-4.
right of vendee to rescind, 394.
sometimes closely akin to locatio
conductio, 395.
emphyteusis resembles, 396.
who can sue “a subject-matter of,
stolen, 438.
degree of dilfgence required under,
453.
Emphyteusis.
explained, 396.
& contract sui generis, 397.
right of owner of thing subject to,
157.
actio vectigalis lies respecting, 396.
the germ of freehold tenure, 399.
English law.
chief references to,
denization and naturalization, 83.
statute of uses, 190.
form of will and witnesses, 206,
207.
age at which testamentary power is
acquired, 212.
meaning of heir, devisee, executor,
bequest, 214.
how wills become invalid, 229.
devolution of property at death with-
out kindred, 233.
liability of executor, 242.
alien, power of to purchase property
and to take under a will, 292.
operation of will, 292.
execution on a judgment, 325.
bankruptcy, 325 et seq.
imperfect obligation, 342.
bargains with expectant heirs and re-
maindermen, 348.
guaranty must be in writing, 383.
formal and formless contracts, 388.
contract of sale, 382, 393, 394.
effect of paying earnest money, 393.
bailments, 397.
guaranty, 404.
theft, 436, 437.
aiders and abettors, liability of, 437.
trespass and trespass on the case,
448.
real and personal actions, 459.
actions relating to incorporeal here-
ditaments, 462.
INDEX.
English law (continued).
actio Personals moritur cum persons,
5.
wager fof battle, 471.
conveyance of copyholda, 471.
arrest of abscondipg debtor, 481.
distress, 483.
executors and administrators, rights
and liabilities of, in actions ex
delicto, 560.
champerty and maintenance, 584.
Bpistola.
of emperors, 25, 30.
& form of rescript, 83.
Equites.
Romant, 47.
as judicial assessors, 43.
equo publico, 47.
Hreption for indignitas.
different from lapse, 233.
instances of, 231, 233—4.
Error.
effect of, on validity of dispositions,
equity sometimes relieves against,
18.
sometimes a title to patria potestas,
71 et seq., 74.
of law, effect of, I3I.
in omitting exceptio from defence,
565.
and see Mistake.
Estate in remainder.
how created in Roman law, 248, 286.
Exacta diligentia, 452.
Exceptio.
object and nature of, 562, 569 et
seq.
stronger and weaker operation of,
550.
whether, affected by praescriptio, 558.
dilatoria, 564.
ex tempore, or ex persona, 565.
if omitted can defence be amended ?
565.
whether fatal to claim, 584.
dok mali.
allowed in all civil law actions,
368
defence to action on a stipulation,
368, 562.
dominti, 574.
legis Anastasianae, 405.
Cinciae, 575.
Juliae, 575.
Plaetoriae, 575.
litis dividuae, 564.
metus causae, 503.
pecuniae non numeratae.
defence to action on stipulation,
368, 562,
within in what time, may be
pleaded, 369, 583.
INDEX.
Bxoeptio (continued).
toria, 564.
if omitted defence may be amended,
565.
rei tudicatae.
when necessary, 541, 545-6.
discussed, 546 et seq.
changes in law affecting, 550.
residuae, 564.
venditae et traditae, 574.
Exchange.
an innominate contract, 344, 352.
nature of, 344.
different from emptio et venditio,
391, 393.
Execution.
after judgment in personal action,
325-6.
in real action, 326, 333.
different from bankruptcy, 325-6,
333.
against body of debtor, 326—7, 330.
Exercitor, 524, 526.
Exhibere, 600.
Existimatio.
effect on civitaa, 117.
caused by insolvency, 331.
Bronerative facts, 3.
Expensilatio.
literal contract, 346, 385-6.
rested on fiction of money loan, 346.
must be unconditional, 364.
no consideration necessary to, but
Promisor may plead exceptio,
368.
nature of, mudified, 369.
formless converted into formal con-
tract by, 386.
obsolete in Justinian’s time, 387.
Expromissio, 378.
Extranea persona.
dominium could not be acquired
through, 108-9 ; but see, 200.
no substitutio to, after aditio, 247.
Facere.
meaning of, in the formula, 460.
Factio, 340.
Familiae emptor.
meaning, 208, 205-6.
no ono in power of, can be witness of
a will, 204.
remedy of publicanus, 485.
bonorum possessor being heres, 485,
486
usucapio, 486.
peregrinus being civis Romanus, 486.
capitis deminutio, 487.
discussed, 490.
Fideicommissum.
origin and object of, 275-6.
659
Fideicommissum (continued).
difference between, and legatum, 275.
tacitum, 262.
of an hereditas, 271.
words creating, 272.
rights and obligations of heres
and transferee, 272-5, 276 et
Beq.
of res singulae, 288.
im on heres, 283.
egatee, 283-4.
what may be giveu, 288-4.
of another person's property, 284,
388.
differences between, and legatum,
charge on heres of heres, 285.
intestate may create, 285.
gifts by codicil, 285.
legatee charged, 285.
liberty to servus alienus, 285.
women and Lex Voconia, 285.
Latini Juniani, 285.
slaves under 30 years old,
285-6.
gift after death of heres, 286.
procedure, 286.
payment of interest, 286.
use of Greek, 280.
heres disputing gift, 287.
overpayment by mistake, 287.
appointment of guardian, 288.
- former differences.
penal dispositions, 288,
gifta to peregrini, 287.
celibates, 287.
orbi, 287.
incertae personae, 287.
Fidejussio.
& species of intercessio, 378.
and see Fidejussor.
Fidejussor. ted
how interroga 871.
may be "to civil or natural
obligation, 371.
heres of, is bound, 372.
extent of liability of, 372, 373, 374.
position in respect of co-surety, 373.
remedy of, against principal, 374.
Fidepromissor.
how interrogated, 371.
why employed, 371.
can only be accessory to verbal con-
tracts, 871.
sometimes bound when principal is
not, 371.
of slave or alien, whether bound, 371.
heres of, not bound, 372.
in Italy, 372.
in the Provinces, 872.
effect of, paying more than his share,
872
-3.
liability of, how limited by law,
373-4.
660
Fidepromissor (continued).
has actio mandati against principal,
374.
ceased to be employed, 382.
Fiducia.
general meaning, 94.
different from nuncupatio, 94.
use of, in coemptio, 92-3.
adoptio, 105.
cum amico, 175.
example, 102, 105.
cum creditore, 175.
example, 348.
Filiusfamilias, Filiafamilias.
powers of paterfamilias over, 61, 61-3.
capacities and incapacities of, 63
et seq.
right of, to sue in own name, 64-5.
proprietary rights of, 65, 199.
cannot accept hereditas without
consent of paterfamilias, 197.
paterfamilias acquires rights through,
197.
cannot acquire by in jure cessio,
199.
testamentary capacity of, 209. —
effect of, being passed over in will,
filiusfamilias, 216.
filiafamilias, 217.
form necessary for disinheriting, 218.
are sui et necessarii heredes, but have
potestas abetinendi, 336.
paterfamilias can institute heres to,
when impubes, 246-7.
are sui heredes in intestacy, 204.
loans of money to, 348.
eannot enter into stipulations with
paterfamilías, 361.
filiafamilias cannot be bound to any
one by stipulation, 361.
effect of, becoming adstipulator, 970.
right of paterfamilias to obligationes
acquired by, 411, 412.
outrage upon, 449, 450, 451.
contractis made by, at bidding, of
paterfamilias, 523.
when captain of a ship, 523-4.
manager of a shop, etc., 524.
in trade with knowledge of pater-
familias, 524.
conversion by, to use of paterfamilias,
524.
when liable to be surrendered in
satisfaction for delict, 528-9 ;
change of law, 530.
how surrendered in actio noxalis,
529.
interdict-possession by means of, 615.
Fiscus.
meaning, 143.
rights and obligations as to caduca,
230, 232-3.
Force, 21.
INDEX.
Formula.
arbilraria, explained, 505.
when, cannot be employed, 505.
examples of, in real actions, 506.
in unde vi, 592, 610-11.
dates of valuation, how expressed in,
509.
in actio de peculio, and de in rem
verso, 527.
exercitoria, 527.
institoria, 527.
quod jussu, 527.
metus causa, 582.
when one person sues or is sued on
behalf of another, 532.
petitoria, 534, 538.
Calvisiana, 322.
Fabiana, 322.
Octaviana, 440.
in actio furti manifesti, 435.
nec manifesti, 439.
under Lex Aquilia, 449.
in actio injuriarum, 451.
in condictio ex causa furtiva, 463.
Ín actio judicati, 481.
moulded on fictio, 485-7.
different parts of a, 4938-5, 495.
praejudicialis, 494, 497.
can consist of only demonstratio and
condemnatio, 498.
in jus concepía, 499, 500, 502.
ex bona fide, 502.
in factum concepta, 500, 502, 506.
condemnatio in, always pecuniary,
501, 504.
sometimes either in jus or in factum,
500, 505.
Formulary system.
superseded legis actiones, 484.
advantages of, over old system,
487-8.
gradually superseded, 488-9.
as to specific performance under, 501,
507.
procedure under, 503-4.
some contrasts of, with legis actiones,
596.
Forum.
discussed, 514 et seq.
domicilii, 320.
rei sitae, 515. .
solutionis, 515.
originis, 515.
Foundation.
meaning, 143.
pious, enabled to take under will,
143.
Freedmen, Freedwomen.
created by manumission, 40.
classes of, 40, 42-5.
guardianship of, 122.
special regulations as to freed-
women, 129, 182.
INDEX. 661
Freedmen, Freedwomen (continued). Hadrian (continued).
rights of patron, patroness, or their condemns father for killing his son, 61.
heres to succeed at death of, Sc. as to status of, issue of peregrinus,
806-317. and civis Romana, 75.
alterations by Justinian, 321-2. issue of Latinus and civis Romana,
oath of, to patron to perform services, 78.
etc., 355, 359. issue of peregrinus and Latins,
and see Deditioius and Latinus and cice versa, 76.
Junianus. issue of freewoman and slave, 76.
Freehold tenure. women may make will without co-
germ of, in emphyteusis, 399. emptio, 89, 208.
Freemen. constitution: Towns may take be-
classes of, 40. quests, 144, 270.
Fructus licitatio, 598, 602, 612. Sc. usucapio pro herede revocable,
became obsolete, 603. 175.
Sc. erroris causa probatio invalidates
definition, 431, 436. will, if testator is alive at the
an obligation ex delicto, 425. time, orson passed over entirely,
oblatum, 429, 436. 227.
conceptum, 420, 435. relieves a person over 25 years of age
lance et licio conceptum, 430, 435. who had made aditio of an
manifestum, 428, 430, 434. hereditas, 237.
nec manifestum, 428, 429. rescript : interest not payable on
penalty of 429, 430, 434, 438. legacies, 286.
a private injury, 434. Se. alien cannot take by fideicommis-
what dealings with property con- sum, 287,
stitute, 431. Sc. status of libertinus on obtaining
no, without dolus, 431. civitas by imperial grant, 316.
consent of owner prevents, 431, 432. Epistola of: gives fidejussor benefit
by owner of thing stolen, 432. of division, 372, 38r.
seizure of property without commit- | Heedlessness, 14.
ting, 432. Heffter.
aider and abettor guilty of, 488. why some actions were an extinctive
person who may sue on account of, bar to subsequent actions, 545.
483, 434, 438. Hereditas.
whether impubes can commit, 434. & res incorporalis, 147.
of a free person, 432. alienable only by in jure cessio, 166,
remedies in addition to action for 171.
penalty, 438, 463. effect of surrender of, 166-7, 337.
ground for criminal prosecution, 439. could not be acquired by usucapio,
now belongs to criminal code, 452. 174.
portions of, could be acquired by
usucapio, 174.
Gaius: see Preface. how acquired, 237-9, 244, 249.
ee Scbiniga nae of, 34. how right to, lost, 238-9, 244.
indication of date of Institutes of, ambulatoria, 250.
247 lapse of, how prevented, 250.
shares in, how allotted, 250-1.
fides commissaria, 271.
usual form of conveyance of, 338.
Hereditatis petitio, 602.
possessoria, 602.
criticiums upon, as to divisions of law,
of res, 149-50, 152.
Galatians.
Gift eo in potestate, 61, 66. ea oe actio familiae herciscundae,
Guardianship: see 'T'utela. Heres.
liability of, for debts, 241.
Habitatio, 157. contrasted with bonorum possessor,
Hadrian. 04.
many grante of Latinitas by, 49. originally a juristic person could not
Sc. & child, whose mother is civis be, 144.
Romana and father Latinus, is could be witness of will, 204, 206.
civis from birth, 50. compared with heir, devisee, and exe-
protection of slaves by, 59, 60. cutor of English law, 214.
662
Heres (continued).
seus must be
inherited
instituted or dis-
in wil, 210 et
seq.
who is, 217 et seq., 241.
origin and object of the rules as
to institution or disinheritance
of, 220-22, 239-40.
necessarius.
meaning, 235.
may be a slave, 235.
& person in mancipio, but prae-
tor gives him potestas absti-
nendi, 236.
protected against usucapio pro
herede, 176.
effect of institution of a, by an in-
solvent, 235.
effect of surrender of the hereditas
by, 167, 337.
suus et necessarius.
meaning, 236.
who may be, 236.
allowed potestas abstinendi by
praetor, 236.
effect of surrender of hereditas by,
167, 337.
extraneus. '
meaning, 237.
who is, 237.
cannot refuse after interfering
with the hereditas, 287.
unless a minor, 237.
how, may accept the hereditas,
237-
time within which, must accept,
238-9, 243, 244.
may lose right to acquire the here-
ditas, 238-9, 244.
effect of surrender of hereditas
by, before acceptance, 337.
after acceptance, 337.
liability of, for debts of the de-
ceased, 241.
seryus suus may be instituted, but
formerly with liberty, 248,
249.
limit of liability of, 235.
effect of manumission or alienation
of servus suus who has been in-
stituted, 248-9.
servus alienus may be, 240.
effect of servus alienus being insti-
tuted, 249.
object of instituting servus alienus,
249-50.
how share of, in hereditas is allotted,
251.
with children, right of to caducum,
252, 257.
share of hereditas secured to, by
statute, 263.
penal institution of, void, 269.
INDEX.
Heres (continued).
postumus alienus could not be, 269 ;
but see, 270.
capacity of a Juristic person to be,
144, 270.
how fideicommissum is imposed on,
272.
rights and obligations of, when
charged with a fideicommis-
sum of the inheritance, 272-5,
277 et seq.
may be charged with fideicommissum
of res si , 283.
liability of, when res aliena is given
as a fideicommissum, 284.
cannot be instituted or disinherited
by fideicommissum, 285.
may be deprived of the hereditas by
fideicommissum, 285.
liability of, who disputes legatum or
fideicommissum, 287.
when, required to give security to
creditors, 539.
when right to sue or liability to be
sued passes to, 551, 559—60.
bound quasi ex contractu to legatee,
10.
of an intestate, fidei commissum may
be imposed upon, 285.
cannot be charged with legatum,
285.
suus first entitled to be, 204.
. who is, 204—5 ; and see, 241.
children of deceased, repre-
sent their father and take
per stirpes, 205.
nearest agnate is, if no sui heredes,
296, 298.
who is, 206-7, 289.
no female may be, except sis-
ter of deceased, 297, 299.
date for ascertaining, 296,
299.
effect of surrender of the here-
ditas by, 166-7, 337.
gentiles succeed as, if no sui he-
redes nor agnates take, 2397-8.
changes of the law as to, by Jus-
tinian, 299-300.
"^ Husband.
alienation of dos by, 187.
capacity to take under a will, a11—
12.
order in which, is called to intestate
succession, 305.
right of, in respect of an insult to his
wife, 450.
when entitled to beneficium com-
petentiae against wife, 497.
right of, to retain part of dos, 539.
Huschke.
as to form of sponsio on quorum bo-
norurm, 611.
INDEX.
Ignoranos.
of fact may be pleaded, 19.
of law cannot be pleaded, 19.
except when defendant is a woman,
minor, or soldier, 21.
of moral law compared with that of
civil and criminal, 20.
effect of, on computation of time, 243.
Imperfect obligation, 29.
Imperium.
a component part of officium juris di-
centis, 542.
mixium, 542, 546.
merum, 542.
power of magistrate invested with,
542-3.
contrasted with jurisdictio, 596.
Impositive facts, 3.
Impubes.
who is, 133, 368.
when called infans, 368.
infantiae proximus, 368.
whether, can be guilty of furtum,
434.
acquisition of possession by, 621.
guardianship of: see Tutela.
power of, to deal with property, etc. :
see Pupillus.
Incerta persona,
who is, 268.
could not take legacy, 268 ; but see,
270.
be appointed guardian, 268.
freedom cannot be bequeathed to,
268.
could not be heres, 269; but see,
270.
cannot take by fideicommissum,
287-8.
Incorporeal hereditaments.
resemble servitudes and jura in re
aliena, 158.
Infamia.
how incurred, 117.
effects of, on civitas, 117, 118.
is, a capitis deminutio ! 117.
Infans, 368.
Infantiae proximus, 368.
Injuria.
meaning of, in Lex Aquilia, 442.
in sense of outrage: see Outrage.
In jure cessio.
& title of jus civile, 158.
form of, 160.
resembles English Fines and Reco-
veries, 161,
hereditatis, 337.
must be unconditional, 363.
Innominate contraots.
are real contracts, 348.
how entered into, 351-3.
examples of, 352.
how enforced, 352.
663
Inofficiositas.
filiusfamilias can impeach a will on
ground of, 64.
who could impeach a will on ground
of, 240.
Inquilinus, 397, 399.
Insolvenoy : see Bankruptcy.
Institor, 524, 526.
Institution, 22.
Intentio.
a part of the formula, 493.
example of, 494.
in action by bonorum
485.
in actio Rutiliana, 486.
Publiciana, 488.
in certain actions by or against aliens,
486
possessor,
sometimes found alone, 404.
effect of claiming too much in, 511,
519.
too little in, 511, 519.
Intention.
definition, 13, r4.
difference in effect of hasty and de-
liberate, 15.
distinguished from negligence, 15.
effect of, on validity of dispositions,
7.
Interoessio.
meaning, 378, 379.
privative, 378.
cumulative, 378.
examples of, 378-80.
Interdiotio aquae et ignis.
meaning, 81.
effect on status, 100, 115.
Interdictum.
nature and object of, 587.
nature of procedure by, 598, 623-5.
relates to subjects in alinost all de-
partments of law, examples,
599-600.
classifications, 587, 588, 591, 60;.
adipiscendae possessionis, 588.
why so-called, 588.
instances of, 588-0.
de arboribus caedendis, 599.
de clandeslina possessione, 606.
de glande legenda, 599.
de homine libro exhibendo, 599.
de liberis ducendis, 599.
exhibendis, 199
de libertis ezhibendts, 599.
demolitorium, 599, 607-8.
de precario, 606.
duplex, 591, 609.
called mixed by Ulpian, 609.
procedure relating to, 598-5, 603,
612-14.
exhibitorium, 587.
Jrasdatorium, 600.
ne vis flat, elc., 600.
664
Interdictum (costínued).
probbitorium, 587.
simplex or duplex, 591.
populare, 599.
possessorium, 600.
quam hereditatem, 599, 607.
quem fundum, 599, 607.
quem usumfructum, 599, 607.
quod legatorum, 599.
quod vi aut clam.
filiusfamilias can maintain, 64.
object of, 599, 608-9.
quorum bonorum, 588.
place in code, 599.
INDEX.
Intestate succession (continued).
descendants of children take per
stirpes, 205.
3. Agnati -ae, 290.
who are, 296-7, 298.
nearest grade of, only entitled,
298.
if nearest grade of, does not take
the other grades are exc‘uded,
290.
time for ascertaining nearest
grade of, 206.
only females who are sisters by
same father can claim as,
form, 601. 207.
when employed, 601-2. a brother excludes eon of a de-
reciperandae possessionis, 590. ceased brother, 297.
instances, 690-1.
restitutorium, 587.
relinendae possesstonis, 589.
instances, 589—90. ,
Salvianum, 351, 589.
when only, are children of de-
ceased brothers they all take
per capita, 297.
3. Gentiles, 207-8.
Harsh operation of rules of, by XII
place in code, 599. Tables, 300.
sectorium, 589. corrected by Praetor's edict, 300.
secundarium, 595, 603, 614. Order of Praetorian Law.
place in code, 600. I. Unde liberi.
simplex, 591.
procedure relating to, 592-3,
610-12.
uti possidetis, 589.
place in code, 599, 600.
emancipated children sbare with
sui et suae heredes, 300,
305.
3. Unde legitimi.
agnates and other statutory he-
form, 592, 603. redes, 305.
duplex but sometimes simplex, 3. Unde cognati.
609, 610. agnates who had suffered capitis
might be retinendae or recuper- deminutio, 301.
andae possessionis, 604. agnates in remoter degree, 301.
utrubi assimilated to, 604. female agnates beyond the degree
compared with unde vi, 606. of sistere, 301.
ulrubi, 589-90. persons who trace descent through
place in code, 599, 600. femsles, 301.
form, 592, 603.
assimilated to uti possidetis, 604.
might be retinendae or recuper-
andae posseasionis, 604.
unde tu sllum ci dejecisti, 590-1.
place in eode, 599.
two forms, quotidianum, 604, 605.
de vi armata, 604, 605.
only applied to immovables, 605.
new form applicable to movables,
5.
why used instead of uti possidetias,
Interdict-possession, 615.
Interest.
on money loan, could only be secured
by stipulation, 510.
on legacies, 286.
children in adoptive family, 301.
those who neglected to claim as
sui heredes or agnates, 305.
all the above take as cognates,
305.
4. Unde vir et uxor :
husband and wife, when the
wife is not in manu, 305.
grant of, by Praetor's edict only gives
grantee bonorum possessio,
801-2, 304.
how, and within what time, must be
claimed by Praetorian law,
306.
effect of grant of, by Praetor's edict
when & person in & superior
degree is passed over, 306.
to freedmen : see under Freedmen.
|
on fideicommissa, 286. Investitive facts, 3.
Intestate succession. Islands.
order of, by XII Tables. property in, 185
I. sui heredes, 204. Italic soil.
who are, 304-5. meaning, 98.
INDEX.
Judex.
pedaneus, 489.
must always condemn in a definite
sum, 501.
may condemn in lees but not in more
than som fixed in formula, 502.
might make a cause his own, 502,
510.
Judicis postulatio.
a legis actio, 467-8.
explained, 472.
when applicable, 473.
Judicium.
calumniae, 626, 627, 630.
contrarium, 626, 027, 630.
Cascellianum, 503, 504, 505.
also called secutorium, 594.
security in, 538.
J*ructuarium, 538, 595.
called also secutorium but not
Cascellianum, 595.
quod imperio continetur.
meaning, 541.
not extinctive bar to a subsequent
action, 541, 545.
an action founded on a lex may
be, 542.
an action founded on edict and
brought at Rome is not always
a, 642.
legitimum.
meaning, 540.
expires in year and six months,
540
when an extinctive bar, 541;
but see, 545.
every action founded on lex is not,
541-2.
action founded on edict and
brought at Rome may be, 542.
secutorium, 504.
sometimes called Cascellianum,
594.
fructuarium, 505.
probable intentio in, 611.
effect of bringing, 613.
when, is absolutorium, 560, 561.
Jura.
rerum, 7.
personarum, 7.
$n re, in re aliena, 154.
Juramentum in litem.
meaning, 476.
when available, 476.
Jurata promissio liberti.
form of, 355.
explained, 359.
Juris auctor, 34.
Jurisdictio.
in narrow sense, à component part of
officium jus dicentis, 542.
in wider sense, same ns officium jus
dicentis, 543.
665
Jurisdictio (continued).
antithesis of, and lex, 543.
contrasted with imperium, 596.
Jurisprudence.
subject matter of, 2, 23.
dogmatic, 23.
historic, 23.
comparative, 23.
treats exclusively of positive law,
26.
Juristic persons.
meaning, 142.
different kinds of, 143-5.
capacity of, to take legacies, 144,
170.
to take inheritances, 144, 170.
Juriste.
authority of responsa of, 26, 33.
limitation of authority of, by law of
citations, 34.
writings of, prohibited by Justinian,
34-
rival schools of, 133-5.
list of some of the more illustrious,
135.
chief controversies between—
as to puberty, 183.
res mancipii, 159.
surrender by heres necessarius,
167.
specificatio, 186, 193.
son being passed over in father’s
will and dying in lifetime of
father, 216.
vulgaris substitutio, 245.
property passing by legacy per
vindicationem, 253.
ownership when legacy per vindi-
cationem is conditional, 255.
legacy per praeceptionem to a
stranger, 258-60.
tutor appointed by will before in-
stitution of heres, 267.
legacy to à person in potestate of
heres, 269, 271.
effect of Sc. ianum when
children of patron are co-heredes
with a stranger, 314.
whether Sc. Largianum applied to
children of daughter or grand-
daughter of patron, 315.
in jure cessio of hereditas by suus,
and necessarius heres, 337.
impossible conditions in gifts by
will, 359.
promise to stipulator and stranger,
860.
capacity of aliens to enter into
literal contracts, 884.
price in emptio et venditio, 380,
891, 393.
recommendation creating manda-
tum, 402.
666 INDEX.
Jurists (continued).
Justinian (continued).
chief controversies between—
as to obligationes acquired by servus
communis, 412, 412.
substituted solutio, 418, 417.
conditional novatio, 415.
extinguishmentofactiones noxales,
529.
mancipatio of son in noxal sur-
render, 529.
what judicia were absolutoria,
560.
Jus.
civile, definition, 25, 27.
examples of institutions belonging
to, 27.
effect of collision of, with jus na-
turale, 114.
edicendi, in whom vested, 26, 31.
how exercised, 31.
faciendi, 156.
gentium, definition, 25.
how promulgated, 26.
examples of institutions belonging
to, 38.
obligations, how far recognised by
jus civile, 28.
slavery introduced by, contrary to
jus naturale, 58, 60
habendi, 156.
honorarium, origin of, 31.
kept distinct from jus civile, 32.
in personam, 6.
not classical, 7.
in rem, 6.
not classical, 7.
Italicum, 98, 1653.
naturale.
slavery contrary to, 60.
effect of collision of, with jus
civile, 114.
prohibends, 157.
quiritium, synonymous with civitas
mana, 54.
Jusjurandum.
in litem, 508.
necessarium, 499.
non calumniae causae, etc., 626.
Justinian.
why constitutions had force of law,
3o.
prohibits juristic writings, 34-
simplifies form of emancipation and
adoption, 106.
cognates guardiansin place of agnates,
I14.
minors could not be tutores, 127.
forms of guardianship in time of, 128.
as to alienation of dos, 195.
changes in law of wills in time of,
206-7.
as to disinheritance of sui heredes,
222.
benefice of inventory introduced, 241.
cretio abolished, 244.
institution of servus suus as heres
implies gift of freedom, 249.
leges caducariae abrogated, 252.
as to dies cedit, 2352.
all legacies to be of one nature, 261.
as to legacies to incertae personae,
etc., 270.
legacies to juristic persons, 270.
Sc. Trebellianum and Pegasia-
num, 280.
fideicommissum of res aliena,
388.
five witnesses to codicils, 389.
alterations in Law Terms and Vaca-
tions, 290.
distinction between fideicommissa
and legacies abolished, 292.
alterations in rules of intestate suc-
cession, 299.
title by agnatio abolished, 399- 300.
dediticii and Latini J uniani abolished,
2I.
alterations in rules of succession to
freedmen, 321.
usus and ususfructus not exiting uished
by capitis deminutio minima,
330.
as to payment to pupillus by mistake,
8
348.
contracts taking effect after the
death of the parties, 365, 366.
payment to stipulator and third
party, 367.
exceptio when contract is in
writing, 369.
only actual satisfaction consumes
right of action, 377.
beneficium excussionis introduced,
381.
as to price being fixed by arbitrator,
393, 396.
arrha, 393.
consideration for locatio conductio,
399.
agent exceeding his authority,
407.
obligatio acquired by servus com-
munis, 412.
novatio, 419, 420.
definition of furtum manifestum, 434.
436.
as to damages for breach of contract,
440.
action of legatee for twice the
value of the legacy, 467.
rules as to litis aestimatio, 509.
changes in law as to plus petitio,
519.
compensatio extended to real actions,
523.
INDEX.
Justinian (continued).
as to extinguishment of actiones nox-
ales, 530.
Judicatum solvi, 540.
pendency of actions, 544.
longi temporis praescriptio, 552.
longissimi temporis praescriptio,
552.
Judicia being absolutoria, 561.
prescription of exceptio pecuniae
non numeratae, 581.
ree litigiosa, 584.
Keller.
form of interdictum quotidianum,
O4.
Knowledge.
effect of, on computation of time,
243.
Labeo.
his definition of dolus, 16.
founder of Proculian school, 134.
his codicilli, 288.
Lapse.
caused by death of heres in lifetime of
testator, 250.
means of preventing, 250.
effect of, of share of a co-heres, 251.
of a legacy per vindicationem, 255,
250-7.
per damnationem, 256-7.
Latinitas.
meaning, 49.
conferred as boon, 49, 81.
majus, 82, 83.
minus, 82, 83.
Latinus.
coloniarius, status of, 101.
Latinus Junianus assimilated to,
48.
Junianus, created by lex Junia Nor-
bana, 44, 47, 48, 311.,
who was a, 43, 44.
status of, 44, 48, 49.
posterity of, free from disabilities,
49-
could not take under a will, except
will of a soldier or by fidei-
commissum, 44, 208, 311; but
see, 252.
could be witness of a will, 49.
goods of deceased, belong to
patron, 311.
right of patron of, and patron's
children and heres, under Sc.
Largianum, 313-5.
imperial grant of civitas to, gave
limited testamentary capacity,
3180.
abolished by Justinian, 321.
modes of becoming a Roman
citizen—marriage and birth of
667
Latinus (continued).
child under certain conditions,
50-1.
six years military service, 51.
building ships, etc., 51.
building house, etc., 51.
carrying on business of miller, 52.
re-manumission, 53.
erroris causae probatio, 72.
summary of methods, 53-4.
status of offspring of, 75, 70.
guardianship of, 123, 124.
bas connubium if specially privileged,
66, 69.
Latium : «ce Latinitas.
Law.
definition, 2.
sources of, 25.
of persons and of things, discussion
upon, 35.
of equal and unequal rights, 36-7.
of status, 36.
Legacy.
different kinds of, 253.
per vindicationem, meaning, 253.
form, 253.
what may be left by, 254.
time when property in, passes to
legatee, 253-4.
effect of thing bequeathed by,
being alienated, 254.
effect of, when joint or several,
255, 256.
effect of condition upon, 255.
lapse of, 255, 256-7.
effect of Sc. of Nero on, 254, 261.
per damnationem, meaning, 255.
form, 255.
what may be left by, 255.
time when property in, passes,
258.
effect of, when joint or several,
250.
lapse of, 256-7.
stnendi modo, form, 257.
what may be left by, 257.
time when property in, passes,
257-8.
whether heres is bound to convey,
258.
effect when several, 258.
effect of Sc. of Nero on, 261.
per praeceptionem, form, 258.
dispute whether any one except
co-heres could take, 258-9,
260.
means of enforcing, 260.
effect of, when joint or several,
260.
effect of Sc. of Nero on, 259, 260,
261.
alterations in the law as tu, 254, 257,
261.
668
Legacy (continued).
of part of an inheritance, probable
origin of, 265, 278.
explained, 278, 278.
to juristic persons, 144, 270.
given before institution of heres, 260,
270.
to take effect after death of heres, 267,
270.
poenae nomine, 267, 268, 270.
to incertae personae, 268, 270.
to after-born strangers, 268, 270.
to & person in potestate of heres, 269,
271.
conditional, eompared with condi-
tional contract, 271.
recovered by judex and formula,
288.
cases relating to, only heard in term
time, 288.
interest not generally payable on, 286,
290.
surety for, exempt from lex Cornelia,
874.
how released per aes et libram, 414,
] 418.
difference between, and fideicom-
missum, 275, 285 et seq.; see
under Fideicommissum.
Legatarius: see Legatee.
Legatee.
can be witness of the will, 204.
partiary, meaning, 273, 278.
stipulation by, 278, 278.
may be charged with fideicommissum,
288-4.
cannot be charged with legatum,
285.
heres bound quasi ex contractu to,
411.
has actio legati against heres, 411.
Legatus.
jurisdiction of, 33.
Caesaris, 33.
Leges Caducariae, were the lex Julia
de mnritandis, and lex Papia
Poppaea, 251.
effect of, 351-2.
abrogated by Justinian, 252.
Leges Juliae.
finally abolished legis actiones, 484,
487.
what were the, 487.
Legis actiones.
why so called, 467.
five forms of, sacramentum, 467,468,
479.
judicis postulatio, 467, 472.
condictio, 468, 471, 472.
manus injectio, 468, 477, 479.
pignoris capio, 468, 482, 483.
abolished, except in two cases, 484,
487.
INDEX.
Legis actiones (continued).
deficiency of, 487.
& person could sue or be sued by, as
representative of another in
certain cases, 531, 532-3.
always an extinctive bar to subse-
quent actions, 541.
contrasted with Formulary procedure,
596-7.
Leo.
constitution ; error of law not to ex-
cuse women, 132.
municipalities to be capable of being
successors, 144, 270.
constitution ; necessity of consecrated
terms in stipulations abolished,
358.
x.
definition, 25.
regia, or imperii, 30.
Bithynorum, 130.
minus quam perfecta, 264.
Aebutia.
as to abolition of legis actiones,
Le
when passed and object, 46.
as to dediticii, 43, 44-5, 316-7.
conditions of valid manumission,
43, 54-5.
as to Latini attaining civitas
Romana, 50, 51.
Latinus married to Latina or civis
Romana may obtain patria po-
testas, 71.
as to manumitter being under
twenty years of age, 54-5.
evaded by fideicommissum, 285.
devolution of goods of dediticius,
816-7.
A. ppuleia.
sponsores and fidepromissores
who had paid more than their
share could recover excess from
co-sureties, 872, 381.
did not apply to fidejussores, 373.
Aquilia.
& plebiscitum, 29.
when passed, 444.
Cap. I, 441, 444.
Cap. II, 442.
Cap. ILI, 443, 447.
measure of damages under, 442.
443, 444.
actions under, 444, 447-8.
compared with English law, 448.
creates obligatio ex delicto, 425.
noxalis actio under, 528.
Atilia.
as to appointment of guardians at
Rome by magistrates, 127.
Calpurnia.
extended condictio, 472, 472.
INDEX. 669
Lex (continued).
Censoria.
as to pignoris capio, 482.
Cicereia.
sureties entitled to declaration by
creditors of amount of the debt,
etc., 973, 381.
Claudia.
abolished agnatic guardianship of
women, 94, 1138.
right of agnates to create cessicia
tutela of females, 124.
Cornelia.
limits amount for which sureties
may be liable, 373-4, 382.
repetundarum.
as to extortion by governors of
provinces, 440.
testamentaria.
as to wills of persons taken
captive, 210.
Crepereia.
as to amount of deposit in an
action, 535, 538.
Falcidia.
heres to receive a fourth of inherit-
apce, 263.
chief clauses of, 265-6.
operation of, in connection with
fideicommisea, 281.
Fufia Caninia.
limits number of slaves to be
manumitted by will, 55-7.
slaves must be manumitted by
name, 268.
abrogated by Justinian, 57.
Furia de sponsu.
as to liability of sponsores and
fidepromissores, 373, 381.
only extended to Italy, 373.
not a lex perfecta, 479.
as to manus injectio, 478, 480.
Furia testamentaria.
a plebiscitum, 29.
legacy or donatio mortis causa not
to exceed 1000 asses, 203.
was a minus quam perfecta lex,264.
exceptae personae under, 265.
a8 to manus injectio, 478, 480.
Hortensia.
plebiscita made binding on popu-
lus, 25.
Julia.
permitted cessio bonorum, 328,
329.
Julia de adulteriis.
a8 to repudium, 108.
as to alienation of dos, 187, 195.
Julia de maritandis.
as to right of state to caduca, 230,
232.
incorporated with lex Papia Pop-
paea, 251.
Jaex (continued).
Julia de vi publica et privata.
penalty for violence, 440.
Julia et Papia.
a mode of referring to the lex
Julia de Maritandis and lex
Papia Poppaes, 251.
Julia et Plautia.
No usucapio of things taken by
violence, 172.
Julia et Titia.
as to appointment of guardians in
the provinces by magistrates,
128.
Julia municipalis.
civitas Romana given to whole
of Italy, 219.
Julia judiciaria.
as to judicia legitima, 540, 544.
Julia vicesima (or vicesimaria).
imposed a duty on testamentary
succession of cives Romani, 374,
38a.
Junia Norbana.
created Latini Juniani, 44, 47, 48.
as to Latinus Junianus acquiring
civitas by marriage, according
to Ulpian, 50, 52.
Junia Vellaea.
as to postumi liberi and those who
succeed to place of sui heredes,
219.
Marcia.
as to manus injectio, 478.
quadruple penalty, 480.
Minicia.
if civis Romanus marries peregrina
or peregrinus marries civis Ro-
mana, not having connubium,
the offspring is alien, 75, 77.
Papia Poppaea.
connubium between ingenui -ae,
and libertini -ae, 7o.
exemption from tutela, 109.
incorporation of provisions of lex
Julia de Maritandis, 251.
ag to caducum, 252.
dies cedit at opening of will in
absence of condition, 252.
as to lapsed legacies, 256-7.
as to patron’s right to share with
children of freedmen, 307.
four children release freedwoman
from tutela of patron, 308.
but patron is entitled to share
of a child if she makes a will,
808.
as to right of patron's daughter
to inheritance of freedwomen,
308-9.
as to right of patroness to inherit-
ance of s freedwoman who is
civis Romana, 309-10.
670
Lex (continued).
Petronia.
a slave not to be exposed to wild
beasts, 59.
Pinaria.
as to time of nomination of judex
in sacramentum, 468
Plaetoria.
against defrauding minors, 137,
575.
Poetelia.
abolished nexum a3 a form of con-
tract, 346.
Pompeia de parricidiis.
paterfamilias not subject to, 61.
Publilia.
sponsor could recover double from
principal unless repaid in 6
months, 374, 382.
lex Cornelia does not apply to
sureties under, 374.
as to manus injectio, 478.
Silia.
created condictio, 472, 472.
Soribonia.
abolished usucapio of servitudes,
170.
XII Tabularum.
trinoctio abesse, 85, go.
vestal virgins exempt from tutela,
109.
agnatic guardianship, 112, 113.
guardianship by patrons, arose
from interpretation of, 122.
curatio of lunatics and prodigals
regulated, 138.
as to usucapio of movables and
immovables, 172.
no usucapio of things stolen, 172.
as tousucapio of res mancipii of
women in tutela of agnates, 172.
agnatic committee of lunatic can
alienate lunatic's property, 187.
as to passing of property in con-
tract of sale, 190
recognises testamentary disposi-
tion, 205.
recognises testamentary words of
clause, 263, 264.
as to intestate succeasion, words of
clause, 298, 299.
of sui heredes, 204.
of nearest agnates, 296 ; words
of the lex, 298.
of gentiles, 297-8.
right of patron and “his heres to
inheritance of his freedmen, 306,
808, 309.
proceedings i in manus injectio, 828,
326-7, 477, 480.
penalty for theft, 420, 480.
injuria (outrage) 450; but see,
452.
INDEX.
Lex (continued).
amount of penal sum in sacra-
mentum respecting liberty, 468.
as to pignoris capio, 482.
actio noxalis for theft, 528.
noxae deditio for pauperies, 531.
as to vindiciae dicendae, 614.
Vallia.
as to manus injectio, 478.
Voconia.
legatee or donee mortis causa not
to take more than heres, 283. |
other provisions of, 265.
evaded by fideicommissa, 285.
Libellary Procedure.
superseded formulary procedure, 489.
sketch of, 631-2.
Libellus conventionis, 631.
Liberal professions.
what were, 408.
remuneration of, 408.
Libripens.
meaning, 203.
no one in power of, can be witness of
& will, 204.
Limitation of actions.
different from usucapio, 181.
and see under actions.
Literal contraot.
how entered into, 383, 385.
debita to cash are not, 384.
whether aliens are bound by,
384.
chirographum a form of, 884.
syngrapha a form of, 384.
expensilatio a form of, 385.
is unilateral, 390.
cancelled by accepti relatio, 418.
Litis aestimatio.
when ascertained by oath of plaintiff,
o8
508.
date for valuation, 508.
how assessed, 509.
Litis contestatio.
a kind of quasi-contract, 291.
consequences of, similar to effect of
mora and mala fide possessio,
291-2.
judgment relates back to time of,
292; but see, 561.
effect of, respecting solidarity and
correality, 377-
in extinguishing obligations, 416,
4a.
meaning of, 420.
the various operations and effects of,
collected, 421-5.
Litteris obligatio: see Literal con-
tract.
Looatio et conduotio.
how entered into, 394.
sometimes closely akin to emptio et
venditio, 305.
INDEX. 671
Loocatio et conduotio (continued).
whether consideration must be money,
395, 396.
emphyteusis resembles, 396.
who is locator and who conductor
under? 397-8.
degree of diligence required in, 453.
Locator.
who is, 397.
Lunatic.
cannot enter into any contract, 361.
under curator though not a minor, 138.
Manoipatio.
form, 96.
what may be conveyed by, 96.
only Roman citizens can be parties to,
96
origin of, 162.
a title of jus civile, 158.
a form of testamentary disposition,
208, 205.
must be unconditional, 363.
Mancipatory Will, 205.
and see under Will per aes et libram.
Mancipii causa, Mancipium.
who are in, 95.
how created, 96.
legal effect of, 62, 97-8.
how different from manus, 99.
how extinguished, 107.
sometimes extinguished without con-
sent of master, 107, 108.
persons in, acquire dominium for the
master, 197.
whether persons in, acquire possession
for the master, 197.
persons in, cannot acquire by in jure
cessio, 190, 201.
ceased to exist before J ustinian's time,
199.
as to persons in, being instituted
heredes by master, 236.
person in, not bound by any stipa-
lation, 361.
cannot be adstipulator, 370.
obligations acquired by, 411.
actions ex contractu against, 529.
Mandatum.
a consensual contract, 389.
qualificatum, 380, 404.
motive for introduction of, 382.
how entered into, 401-2, 403.
will a recommendation create? 402.
is void, if to be executed after agent's
death, 402.
how terminated, 402.
effect of execution of, after princi-
pal’s death, 408.
agent deviating from terms of,
403, 407.
English law bearing on, 404.
delegatio a species of, 404.
Mandatum (continued).
assignatio a species of, 405.
agendé, 406.
is gratuitous, 403 ; but see, 408.
degree of diligence required in, 453.
Magistrates.
power of issuing edicts, 31.
old republican and imperial nominees,
32.
imperium and jurisdictio of, 542.
Maine.
origin of testamentary dispositions,
303.
Malice.
meaning in English law, 17.
Manumission.
how effected, 43, 44.
a public or private act, 45, 48.
restraints on, 42, 43, 54-7.
and see Freedmen.
Manus.
meaning, 87.
father has, over wife of a son in po-
testate, 63.
how created, 87, 88.
peculiar to Roman citizens, 87.
legal effect of, 89, 335 -6.
gradually became obsolete, go.
ceased to exist before Justinian's
time, 199.
extinguished by mancipation and
manumission, 106.
of husband, how different from that
of other persons, 106.
person in, acquires dominium for
person who. has, 197.
whether person in, acquires possession
for person who has, 197.
person in, cannot acquire by in jure
cessio, 199, 201.
as to obligationes acquired by person
in, 411.
effect on debts of women who became
subject to, 487, 493, 529.
Manus injectio.
a legis actio, 468.
procedure, 477, 478, 326.
pro judicato, 477.
pura, 478.
when applicable, 477-8, 480.
when a mode of self-redress, 479.
a form of execution, 326-7, 330.
Marcus Aurelius.
grants of civitas Romana by, 82.
constitution ; as to curators, 186, 138.
as to juxta-tabular possession, 213,
* v
215.
forfeiture for indignitas, 231, 234.
pro herede gestio, 247.
pupillaris implied in vulgaris substi-
tutio and vice versa, 248.
alterations in Law Terms and vaca-
tions, 290.
672
Marcus Aurelius (continued),
exceptio doli mali might be pleaded
in all civil law actions, 368.
constitution; exceptio pecuniae non
numeratae barred after five
years when stipulation was evi-
denced by writing, 369.
rescript ; as to compensatio, 522, 523.
Marriage.
whether a contract ? 68-9.
parties must have connubium, 66,
69-70.
between ascendants and descendants
prohibited, 66.
between certain collaterals prohibited,
67, 70.
between some relations by marriage
probibited, 67, 70.
nefarious and incestuous, no marriage,
67.
requires consent of paterfamilias, 71.
& means of acquiring patria potestas,
civil, 69.
gentile, 69.
effect of, between—
Latinus and Latina, 71.
and civis Romana, 71, 75.
civis Romanus and Latina or pere-
grina, 66, 71, 74, 75.
and libertina dediticiorum nu-
mero, 72.
civis Romana and peregrinua, 72,
73, 74, 75.
and libertinus dediticiorum nu-
mero, 72.
Latina and peregrinus, 72, 75.
Latinus and peregrina, 72, 75.
civis Romanus, thinking himself
Latinus, 72.
civis Romanus, thinking himself
inus, 73.
how dissolved, 108, 116.
See Manus.
Metus.
ground for exceptio, 581.
actio and in integrum restitutio,
581.
Military Will, 208, 208.
Minor.
who is, 137.
curator appointed to, 186, 137.
legal effect of appointment of curator
to, 138.
nature of curator's obligation to, 410.
Missio in possessionem.
explained, 324, 327-8.
Mistake.
effect of payment of legacy by, 287,
292.
fideicommissum by, 287, 292.
money by, 347, 411.
money by, to pupillus, 347.
INDEX.
Mistake (continued).
effect of payment of money by, to
& woman, 347.
effect of as to subject of claim in an
action, 512, 519.
Modestinus.
authority of writings of, 34.
short account of, 135.
Mora.
interest on legacies and fideicommissa
payable from date of, 290.
when, commences, 290.
different from nativity of action, 291,
555-
corresponds tu mala fides, 291.
demand of payment not always nece:-
sary to cause, 291.
genuine doubt as to liability prevents,
291.
Municipality.
meaning, 318.
capacity of, to be heres or legatee,
144.
how citizenship in, acquired, 318-19.
chief effecta of citizenship in, 319.
Municipium; see Municipality.
Mutuum.
effect, of, by pupillus, 195, 196.
by a woman, 198.
& contract, 347.
how entered into, 347.
is gratuitous, 348.
no interest payable on, except by
stipulation, 348.
how enforced, 348.
Naturalis obligatio.
meaning and effect of, 39, 341.
instances of, 114.
novatio produced by, 419.
Naturalization.
in English law, 83.
Negligence.
definitions, 13, 15.
ignorance of law regarded as, 19, 20.
degrees of, discussed, 452—4.
Negotiable paper.
not recognised in Roman law, 407.
Negotiorum gestor.
meaning, 533.
. nature of obligation of, 4to.
Nemo pro parte testatus, eto.
origin of maxim, 221.
effect of rule upon share of heres,
251.
Neratius, 134.
Nero.
enacts that building houses, etc. con-
fers civitas Romana, 51.
So. of as to form of legacies, 254,
257, 261.
Sc. Trebelianum in reign of, 378,
277.
INDEX.
Nerva
and Hadrian, constitution; all ju-
ristic persons can take legacies,
144, 270.
Nexum.
a mode of alienation, 345.
a form of contract, 346.
abolished by lex Poetelia, 346.
a mode of extinguishing an obliga-
tion, 345; 346, 414, 418.
Nomina arcaria.
meaning, 388.
create real obligation, 284.
Nomine transcriptitia.
meaning, 883.
origin of term, 387.
Novatio.
formerly the only mode of transferring
obligations, 167.
obligations extinguished by, 414.
when new term essential, 415.
effect of a woman being a party to,
4165.
pupillus being a party to, 415.
slave being a party to, 415.
when conditional, 415, 419.
by Aquilian stipulation, 417.
naturalis obligatio may operate as,
414, 419.
doubt whether addition of sponsor
produces, 415, 419.
necessaria, 421.
voluntarta, 421.
produced by judgment, 416, 421.
Noxae deditio, 531 ; see Actio noxalis.
Wuda paotio.
meaning, 344.
produces naturalis obligatio only,
344-
can be used as an exceptio, 344. 375.
effect of, to pay interest, 344, 510.
N'uds repromissio.
meaning, 383.
Nudum pactum: see Nuda paotio.
Nunocupatio.
meaning of, in making a will, 204.
Nuncupative will, 207.
Nuptiae, 66: and sce Marriage.
Obligatio, obligation.
definition, 2.
of Justinian, 340.
relative, 3. “4°
absolute, 3.
& res incorporalis, 147.
question as to transfer of, 167, 405
et seq.
ez contractu, 838, 342.
re, 839.
verbis, 339.
litteris, 339.
consensu, 839.
673
Obligatio, obligation (continued).
ez delicto, 888, 3423.
different kinds of, 425.
whether doctrine of possession be-
longs to, 454.
implies compulsion, 339.
in narrower sense, excludes duties
imposed on all the world, 339.
performance of, three elements, 340.
always transformable into money pay-
ment, 340—I.
divisions of, 838, 341-2.
civilis, 341.
quasi ex contracts, 342, 410.
delicto, 343.
naturalis, meaning and effect of, 39,
341.
instances of, 114.
compared with English law, 342.
may produce novatio, 419.
through what persons, may be ac-
quired, 200, 366-7, 408-9, 411.
extinguishment of, by solutio, 418.
by same kind of agreement by
which it was created, 418.
acceptilatio, 413.
per aes et libram, 414.
novatio, 414, 419.
litis contestatio, 416.
Ocoupatio.
a title of jus gentium, 184.
instances of, 184.
Officium jus dicentis.
explained, 542, 543.
Omnis judicia esse absolutoria, 560, .
561-2.
Orbi,
definition, 252.
limited right of, to take inheritances
and legacies, 208, 252.
disabilities of, inapplieable to will of
a soldier, 208, 211.
disabilities extended to fideioommissa,
287.
Origo.
confers civitas in a municipality,
318.
determines & person's general forum,
320.
Ortolan.
as to marriage contract, 68.
Outrage (injuria).
meaning, 451.
obligatio ex delioto created by, 425.
what constitutes, 449, 450.
through whom, may be suffered, 449,
450.
penalty for, 450.
degrees of, 451.
requires dolus malus, 451.
is ground for civil or pro-
ceedings, 451.
now belongs to criminal code, 452.
674
Papinianus.
authority of writings of, 34.
short account of, 134.
Partiarius legatarius.
definition, 273, 278.
stipulations between, and heres, 273.
Partiary legatee : see above.
Partner.
when entitled to beneficium compe-
tentiae, 497.
and see Societas.
Paterfamilias.
power of, over slaves, 58-9, 59-60.
over person of descendant, 61,
I.
over property of descendant, 62,
5.
has nsafract in peculium adventicium,
5.
consent of, necessary to marriage of
those in potestate, 71.
acquires dominium by persons in his
power, 107.
possessio by persons in his power,
except, perhaps, those in manu
or mancipio, 197.
aoquires obligations by persons in his
power, 411, 412.
outrage inflicted upon, through per-
sons in his power, 449, 450,
457:
when, ontitled to beneficium compe-
tentiae, 497.
liability of, when filius familias or
ve enters into a contract, by
his order, 523.
as his exercitor or institor, 523—4.
in trade with his knowledge, 524.
without his consent, 824-5.
no valid stipulation between, and
those in his power, 861.
liability of, for delicts of those in his
power, 528-9.
Patria potestas.
peculiar to citizens of Rome, 61.
nature of, 61 et seq.
& consequence of jusiae nuptiae, 61,
66
erroris causae probatio, 71 et seq.
compliance with a provision of
lex Aelia Sentia, 50, 71.
express grant of emperor, 84.
majus latium, 81-2.
adoptio, 83; but see, 87.
legitimation, 92.
not obtained by alien becoming civis
Romanus unlees expressly grant-
ed, 84, 220.
extinguished by death, 100.
interdiction from fire and water,
100.
filius-familias becoming flamen,
101.
INDEX.
Patria potestas (continued).
filisfamilias becoming a vestal
virgin, IOI,
becoming a Latin oolonist; for-
merly, 101.
emancipatio, 102, 108.
giving in adoptio, 108 ; but see, 87.
Patrona.
right of, to inheritance of libertus
civis nus—
by XII Tables, 808.
lex Papia Poppaea, 309, 810.
right of, to inheritance of liberta
civis Romana before lex Papia
Poppaea, 809.
under lex Papia Poppaea, 809—
10
right of son of, to inheritance of li-
bertus -a civis Romanus -a, 310.
cannot be summoned by libertus
without praetor's leave, 628.
Patronus.
right of, to tutela of liberti -ae, 139.
when tutor and absent cannot be
superseded, 125, 128.
powers of, when tutor of women,
129-30.
authority of, necessary to grant of
juxta-tabular possession under
& woman's will, 213.
right of, to. inheritance of libertus
civis Romanus—
by XII Tables, 306.
Praetor's edict, 807.
lex Papia Poppaea, 307.
right of, to inheritance of liberta civis
Romana—
before lex Papia Poppaea, 807.
under lex Papia Poppaea, 308.
rights of, to inheritance of libertus -a
pass to all male descendants
through males, 308.
right of daughter, and granddaughter
and great granddaughter by
son or grandson, of, to inherit-
ance of libertus -a—
by XII Tables, 308.
Praetor's edict, 308.
lex Papia Poppaea, 3808-9.
heres extraneus of, cannot succeed to
inheritance of libertus-a civis
Romanus -a, 309.
right of, and his heredes to goods of
Latinus -a Junianus -a, 811-16,
317-
right of, and his heredes to goods of
dediticius -a, 816-17.
right of, and his heredes where there
are two or more patrons, 312,
317.
how protected against fraudulent
alienation by libertus -a, 321-3.
relation of, and colonus, 398.
INDEX.
Patronus (continued).
formula in action by, against libertus
who has summoned him in vio-
lation of the edict, 500, 503.
cannot be summoned by libertus
without praetor's consent, 628.
Paulus.
authority of writings of, 34.
short account of, 134.
Peculium.
origin and nature of, 65, 199.
castrense, 65, 199.
quasi castrense, 65, 199.
adventictum, 65, 199.
profecticium, 6; ? 199.
Pedaneus judex, 489.
Pegasus, 134.
Per aes et libfam.
a mode of extinguishing obligations,
414, 417.
and eee Nexum.
Mancipatio.
Mancipatory Will.
Peregrinus -a.
had not connubium or commercium
gnlese specially privileged, 66,
I
69, 176.
status of offspring of, and civis, eto.,
72-5.
dominium of, 176.
cannot take under will, except will
of a soldier, 208.
cannot take by fideicommissum,
287.
cannot acquire dominium by usucapio
when bonorum emptor, 824.
stipulations by, how máde, 354.
whether, is capable of entering into
a literal contract, 384.
feigned to be a civis Romanus in cer-
tain actions, 486.
Permissive occupancy.
compared with commodatum, 607.
Permutatio.
an innominate contract, 352.
Persecutio.
name Aid proceedings before praetor,
31.
Personae.
divisions of—
ingenui, libertini, 40.
cives Romani, libertini, dediticii,
40.
sui juris, alieni juris, 58.
Personarum universitas.
explained, 142 et seq.
and see further under Juristic
person.
Persons: see Personae and Person-
arum universitas.
Petitio.
sometimes vindicatio and sometimes
condictio certi called, 463.
675
Pignoris capio.
proceeding in ordinary execution, 326.
different from bankruptcy prooeed-
Ings, 333.
a legis, actio, 468, 482; but se,
493-
how introduced, 482, 483.
resembled English distress, 483.
Pignus.
power of pledgee to alienate, 187,
195.
& real contract, 348.
three forms of, 350.
how enforced, 350-1.
pledgee can sue for theft of, 488, 437.
Plebiscitum. .
definition, 25.
populus bound by, after lex Hor-
tensia, 25
, 25.
sometimes called lex, 29.
Plebs, 25.
Pledgee.
power of, to alienate, 187, 195.
can sue for theft, 433, 437.
and see Pignus.
Plus petitio.
meaning, 511-12.
re, 511. 2
tempore, 511, 518.
loco, 511.
oausd, 511.
effect of, in intentio, 511, 519.
in condemnatio, 512.
in demonstratio, 518, 519.
avoided by formula arbitraria, 514.
ex bon& fide, 514.
changes in law as to, 518-9.
Pomponius, 134.
Populiscita.
leges sometimes called, 29.
Populus, 25.
Possessio.
place of in Roman law, 151, 454,
622-4.
pro possessore, 178.
differs from dominium with respect to
abandonment, 191.
acquired through persons in potestate,
197.
whether, acquired through persons in
mancipio, 197.
whether, acquired through a person
in manu, 197.
definition of, 614.
civilis, 615.
naturalis, 615.
for purpose of usucapio, 180, 590-1,
615, 622.
for purpose of interdict procedure,
615, 622.
discussed with reference to things
in custody of—
a slave, 615.
Xr2
676
Possessio (continued).
discussed with reference to things
in custody of—
filiusfamilias, 615.
an agent, 616.
& borrower, 616.
& hirer, 616.
an emphyteuta, 616.
a mortgagee, 616, 619.
& depositary, 590, 617.
a imive occupant, 617,
I9.
defendant in a vindicatio,
17.
an owner of a servitude, 617-8.
- a sequestrator, 617, 619.
superficiarius, 619.
colonus, 590.
an inquilinus, 590.
peculiarity as to acquisition of, by an
infant, 621.
essentiale for acquiring, 620.
easentials for retaining, 590, 620.
how, interrupted, 620.
effect of, of an universitas rerum,
621.
Possessor.
bond fide, rights and liabilities of, as
to fructus, 190.
of slave, right of the things ac-
quired by the slave, 198.
mad fide, liability in respect of fruo-
tus, 190.
and see Possessio.
Postliminium.
explained, 100, ror.
Postumi -ae.
who were, 112.
may have testamentary guardian, 109.
when over in the will their
birth invalidates the will, 218.
males rust be disinherited indi-
vidually, 218.
females may be disinherited by a
general clause, if something be
left to them, 218.
general statement of the law aa to,
222-5.
Aquiliani -ae, 323, 224.
tias -a6, 223, 224.
Vellaeani -ae, primi capitis, 223, 224.
secundi capitis, 223, 224.
aliens -ae, who were, 112.
cannot be legatees or heredes,
208-0; but see, 270.
cannot take by fideicommissum,
287-8.
liberi, sui heredes intestati, 205.
Potestas abstinendi, 236.
Potestas deliberandi, 237.
Praediator.
definition, 175.
had power of distress, 483.
INDEX.
explained, 175, 180, 484.
Praefectus, 33.
Praejudicium.
& proceeding to settle & preliminary
issue, 497-8.
Praesoriptio (the effect of lapse of time).
longi temporis, 180, 552.
longissimi temporis, 180, 552.
temporalis, 181.
canon law as to, 552.
change as to length of time necessary
to produce, 552.
as to, of servitudes, 553.
at what moment, begins to run, 554.
interruption of, 555.
suspension of, 556.
effect of, of real actions, 557.
of personal actions, 557.
as to, of right to plead exceptio, 558.
why sometimes used in the sense of
usucapio, 586.
Praescriptio (i.e. & clause in the
formulas).
nature and object of, 566.
why so called, 567.
by which party inserted, 567.
in action on contract made by slave
or person in potestate, 568.
in action against principal for an un-
certain sum, 568.
in action against surety for an un-
certain sum, 568.
became obsolete, 585.
ea res agatur de fundo mancipando,
586.
jus edicendt of, 26.
Provinoiae, 33. . ;
enforced fideicommissa in Provinces,
286.
Praestare.
meaning of, in formula, 460.
Praetor.
rotection of minors by, 137.
norum io granted by, 215,304.
secundum tabulas—
when will is informal, 213,
215.
when praeteritus died before
the testator, 231, 231.
* when will becomes invalid,
229.
to persons entitled under a
valid will, 302.
contra tabulas—
to suae heredes passed over
in the will, 217.
to sui heredes, other than
80ns, not disinherited indi-
vidually, 218.
to emancipated children passed
over in the will, 220.
INDEX.
Praetor (continued).
intestati—
to certain persons not entitled
by jus civile, 300-1.
io persons entitled by jus
civile, 802-3.
gives potestas abstinendi to sui et ne-
cessarii heredes, 280.
relieves extranei heredes who are
minors and have accepted a
damnosa hereditas, 237.
sometimes shortens time for deliberat-
ing of heres, 239.
became customary for, to fix time for
acceptance of hereditas, 244.
gives patron certain rights in the in-
heritance of libertus, 307.
only calls male issue to the succes-
sion at the death of a patron,
806.
gives remedy against debtors who
have been adrogated or have
passed into manus, 335-6, 487.
introduced actio de vi bonorum rap-
torum, 440.
quod metus causa, 440.
gave new remedy for damnum in-
fectum, 484, 489.
acquired new power under formulary
88
, , Byte, 488.
introduced actio Rutiliana, 486, 492.
Serviana, 486, 492.
Publiciana, 486, 492.
noxalis for outrage and rapine,
528
imperium and jurisdictio of, 542-3,
-8
5 .
Jideicommissariws.
enforces fideicommissa at Rome,
286.
peregrinus.
origin of, 26.
jus edicendi of, 26, 31.
jus gentium promulgated by, 26,
27.
«urbanus.
jus edicendi of, 26, 31.
precepts of jus gentium adopted
y, 27.
Praetorian Will, 207.
Precarium: see Permissive ocoupancy.
Prescription.
acquisitive, 181.
extinctive, 181.
and see Praesoriptio.
Primordial rights, 29.
Priscus, 134.
Private International law, 518.
Privative facts, 3.
Procedure.
law of, whether earlier than substan-
tive law, 457.
development of, 457.
677
Procedure (continued).
ancient and modern views respecting,
457-
governed by law of place where the
action ig brought, 517.
by legis actiones: see Legis actiones.
formula: see Formulary System.
libellus conventionis: see Libel-
ary Procedure.
interdict, 598 et seq.
Pro-consul, 33.
Proculus, 134.
Procurator.
Caesaris, 33.
voluntarius, 533.
distinct from curator, 138.
alienation by, 187.
an insolvent cannot be, 331.
how appointed, 531.
security by, when plaintiff or defen-
dant, 535, 538, 540.
Prodigal.
interdicted from administering his pro-
perty, 138.
though not a minor, bas a curator,
138.
Pro herede gestio.
meaning, 244.
effect of, 287, 238.
Property.
definition of absolute, 154.
different kinds of partial, 154.
Provinoes.
divided between Emperor and people,
33-
titles of the governors of, 33.
tributary, 164.
stipendiary, 164.
ownership of land in: see Provincial
land.
Provincial land.
dominium in, belongs to emperor or
people, 146.
cannot be sacrum, but may be re-
garded pro sacro, 147.
cannot be religiosum, but may be
regarded pro religioso, 147.
cannot be acquired by usucapio, 172 ;
but see, 180-1.
not subject to quiritary dominion, 176.
subject to bonitary dominion, 176.
acquired by longi temporis prae-
scriptio, 180.
distinction between, and Italian land
abolished by Justinian, 180.
Pubertati proximus.
who is, 368.
Puberty.
what is age of, 133, 368.
Publicatio, 401.
Public Will, 207.
Puchta.
as to effect of Sc. Juventianum, 602.
678
Pupillaris substitutio.
meaning and effect of, 246-7.
could only be made to descendants in
potestate, 247.
can be made when the descendant is
disinherited, 247.
implied in vulgaris substitutio, 247-8.
Pupillus -a.
alienation by, 195.
effect of loan made by, 195, 196.
paying a debt to, 196.
conveyance to, 196.
not bound by contract without au-
thority of guardian, 361.
can contract, with guardian’s autho-
rity, although only seven years
old, 361.
surety for, is bound, 871.
nature of tutor's obligation to, 410.
Quaestor.
jus edieendi of, 26.
power of, under empire, 33.
Quarta Antonini, 87, 241.
Quasi-possession, 462, 553, 618.
Querela inofficiosi testamenti, 322.
Quiritary dominion: see under Domi-
nium.
Bashness, 14.
Real action: see under Actions.
Real contract.
how entered into, 347.
different kinds of,
mutuum, 847, 347-8.
commodatum, 349.
depositum, 349.
pignus, 350.
innominate, 351.
Reouperator, 48.
Regula Catoniana, 271.
Relegation, 101.
Remainder: see Estate in remainder.
Replicatio.
nature, object, and instances of, 565-
6, 585.
Rerum universitas, 151-2.
Res.
divisions of, 146-7.
discussed, 148 et seq.
divini juris, 146, 147.
humant juris, 146.
religiosae, 146.
sacrae, 146.
eanctae, 147.
publicae, 147, 153-4.
privatae, 147, 153-4.
corporales, 147.
incorporales, meaning, 147.
how created and transferred, 165
et seq.
mancipti et nec mancipii, 148.
examples of, 159.
INDEX,
Res (continued).
difference between, 159-60.
effect of traditio of res mancipii,
171-2.
effect of alienation of, by wards
and women, 195-6.
communes, 152-3.
4n nostro patrimonto, 146, 153.
extra nostrum patrimonium, 146, 153.
én patrimonio populi, 153.
Sungibiles, 348.
gerit domino, 349, 393.
judicatae, 410, 421, 546 et seq.
pro veritate accipiuntur, d
in judicium deductae, 550, 564.
lítigiosae, 583.
Responsa prudentium.
definition, 26.
when binding on judex, 26, 33.
rescript of ian respecting, 26.
a mode of promulgating jus gentium,
27.
effect of law of citations on, 34.
codification of, 34.
Restipulatio.
a means of checking vexatious litiga-
tion, 627, 630.
Restituere.
meaning of, 600.
Right.
definition, 2.
divisions of, 4, 6, 7, 38, 39, 150.
meaning of—
sanctioned, 4.
sanctioning, 4.
ín rem, 6.
in personam, 6.
equal, 38.
unequal, 38.
real, 39.
personal, 39.
primordial, 39.
res as the subject of a, 149.
Robbery.
creates an obligation ex delicto,
425.
explained, 439.
remedy in respect of, 430, 440.
requires dolus malus, 440.
legislation respecting, 440.
Sabinians, 134.
Sabinus, 134.
Sacramentum.
a legis actio, 467.
procedure in, 468-70, 470, 535,
538.
compared to English wager of battle,
471.
use of rod in, compared to surrender
of copyholds by delivery of rod,
471.
Bale: sec Emptio et venditio.
INDEX.
Salvius Julianus.
edictum perpetuum of, 31.
a Sabinian, 134.
form of allowing certain posthumous
grandchildren to be instituted
or disinherited, 223.
Sanction.
definition, 2.
different kinds of, 7, 8.
of civil law, 464.
Satisacceptio, or Satisdatio, 383.
Batisdatio.
meaning, 383.
when required of defendant in meal
action, 533, 536.
in personal action, 535, 536.
by representative of defendant, 535.
not required of plaintiff in real action,
535.
not required of cognitor, 535.
procurator must give, that principal
would ratify, 585, 538.
by guardian, 535.
curator, 535.
effect of defendant refusing to give in
real action, 536.
by heres, 539.
by stipulatio judicatum solvi, 534,
538, 539- oe
pro praede litis et vindiciarum,
534, 538.
Savigny.
as to marriage contract, 69.
coemptio, 92.
nature of capitis deminutio, 119.
separatio fructuum gives bona fide
possession only, 190
a8 to interdict quorum bonorum, and
poesessoria hereditatis petitio,
304-
as to correality and solidarity, 377,
379-
origin of term transcriptitia nomina,
387.
personal execution confined to actions
on money loans, 388.
place of possession in jurisprudence,
454, 623.
formula consisting of only demon-
stratio and condemnatio, 498.
as to time when prescription begins,
554, 555-
interruption of prescription, 556.
effect of prescription on personal
actions, 557.
prescription of exceptiones, 558.
formula in action for an uncertain
sum, 587.
whether unde vi applies to mov-
ables, 605.
quorum bonorum, 601, 602.
uti possidetis, 610.
protection of urban servitudes, 618.
679
Savigny (continued).
as to possession of superficiarius, 619.
Schools of Jurists: see under Jurists.
Secret trusts.
to evade law, how discouraged, 262.
Seotio bonorum.
vested dominium in vendee, 333.
transferred juris universitas, 333.
how conducted, 401.
Security: see satisdatio.
Belf-redress.
in archaic society, 441.
superseded by state intervention, 441.
in case of affront or dishonour,
451-4.
in defence of possession, 605.
Semel heres semper heres.
meaning of maxim, 248.
Senate.
legislative power of, 29.
Senatusconsultum.
definition, 25.
force of, at different periods, 29.
sometimes called lex, 29.
Claudianum.
as to intercourse of freewomen
with slaves, 76, 77, 78, 115.
Juventianum.
abolished usucapio pro herede,
175, 179, 601-2.
Largianum.
as to succession to Latinus Juni-
anus, 318, 814, 315, 317.
Macedonianum.
' prohibited money loans to filius-
familias without consent of
paterfamilias, 348.
exoeptio founded on, 571.
Neronianum.
as b. form of legacies, 254, 257,
I.
Orphitianum.
entitled children to succeed their
mothers, 305.
Pegasianum.
heres may retain a fourth of a
fideicommissum, 273, 278 et
seq.
heres may be ordered by praetor
to make aditio and transfer to
fideicommissarius, 274.
fideicommissa placed on same
footing with legacies and inherit-
ances as regards caelibes and
orbi, 287.
Trebellianum.
as to rights and obligations of
heres and fideicommissarius,
273, 277 et seq.
the words of, 277.
Tertullianum.
entitled mothers to succeed their
children, 305.
680
Senatusconsultum (costinued).
Velleianum.
made women incapable of being
guarantors, 383.
exceptio founded on, 571.
Servitude.
nature of, 155.
how created, 165-66, 168, 553.
could not be acquired by usucapio,
170,
praedial, 154-5.
personal, 155, 157.
rustio, or
nature of, 155-6.
examples of, 156.
when extinguished by non-user,
169-70, 553-
nature of, 155-7.
affirmative, 155-7.
negative, 155-7.
altius tollendi discussed, 168.
ne prospectui officiatur, 170-1.
ne luminibus officiatur, 170-1.
ne altius tollatur, 170-1.
luminum, 170-1.
actions in respect of, 460-2.
quasi-possession of, 462, 553, 618.
ur
Servus -a.
manumitted, becomes dediticius-a,
423
or Latinus -a, Junianus -a, 43, 44.
or civis Romanus -a, 48, 44.
how manumitted, 43, 44, 54-5.
form of direct bequest of liberty to,
284
obstacles to, attaining civitas, 42, 43.
how manumitted by master under
twenty, 54-5, 55.
ns who cannot manumit, 54.
could not be manumitted by will un-
less one of a limited number,
55-7.
power of master over, recognised by
jus gentium, 58, 60.
power of master over, 58-9, 59-60.
no caput, 60.
is incapable of marriage, 69.
status of offspring of, and freeman,
75, 79.
and freewoman, 75, 76, 77.
freewoman who mes, 79.
a free person might become, by Sc.
udianum, 78, 115.
evasion of the census, 114.
residence at Rome contrary to lex
(Aelia Sentia ?), 115, 115.
surrender by pater patratus, I15.
evasion of military service, 115.
condemnation for a capital offence,
116.
condemnation of & freedman for
ingratitude, 116.
INDEX.
Bervus -& (continued).
allowing himself to be sold in
order to share the price, 116.
in bonis acquires for bonitary pro-
prietor, 197.
right of usufructuary to dominium,
etc., acquired by, 197.
obligations acquired by, 411.
instituted by master is heres neces-
sarius, 235.
may be instituted heres by master or
a stranger, 248-9.
effect of ‘institution of, as heres,
liberty may be given to, by fideicom-
missum, 284.
effect of liberty being given to,
alienus-a by fideicommissum,
284, 285-0.
cannot enter into valid stipulations
with master, 361.
cannot be adstipulator, 870.
liability of surety of, 371.
who has benefit of obligationes ac-
quired by, 411-12.
remedy against person who kills, 443,
447:
outrage may be inflicted on master
through assault, etc. upon, 450.
liability of master under contract by,
as exercitor or institor, 523.
by master’s order, 523.
in trade, with master’s knowledge,
524.
for property converted to his use
by, 524
y» .
when delict by, renders him liable to
be surrendered in satisfactien,
528-9.
has no possession, 615.
Sestertius.
change in value of, 537-8.
Severus.
constitution of, and Antoninus, as to
burden of proof in action on
cautio, 581.
Slave: see Servus.
Societas.
& consensual contract, 889.
different kinds of, 899.
division of profit and loss under, 399,
400.
how dissolved, 400, 401.
publicanorum, 400.
an institution of jus gentium, 400.
passing of property under, 401.
when called leonina, 401.
Soldier.
effect of error of law by, 132.
uliarities of will of, 208.
as beneficium competentiae, 497.
Solidarity.
meaning, 376.
INDEX.
Solidarity (contin
how, originates, 376.
point of agreement between, and cor-
reality, 376.
chief differences between, and cor-
reality, 377.
Solutio.
performance of an obligation, 340,
413
three elements of, 340.
effect of substituted, 413.
imaginaria, by acceptilatio, 413.
per aes et libram, 414.
effect of, by third party, 417.
Sovereign.
definition of, 2.
Sovereign States.
nature of obligations between, 357-8.
Specificatio.
meaning, 193.
examples of, 186, 193.
Sponsor.
how interrogated, 371.
can only be accessory to stipulationes,
871.
heres of, not bound, 372.
in Italy, the liability of ceases in two
years, 372.
each, only liable for his share,
872.
in provinces each, is liable for the
whole, but epistola of Hadrian
gave relief, 372.
effect of, spaying more than his share,
972-
entitled to "declaration by ereditor of
the amount of the debt, eic.,
373.
has benefit of lex Cornelia, 3973-4.
cases to which the lex does not
apply, 374.
not bound for more than principal, 874.
has actio mandati against principal,
374.
sometimes bound when principal is
not, 371.
can recover double from principal
unless repaid within six months,
874.
could only intervene when both parties
were cives Romani, 381.
Bponsio.
different classes of, 455.
a kind of wager, 458, 598.
poenalis, 458, 534, 538.
pracjudicialts, 458, 534, 538.
on quorum bonorum, 611.
as check on vexatious litigation, 626,
630.
State.
dominium of the, 153.
usureceptio of mortgaged property sold
by the, 175.
681
Status.
law of, 36-8.
falls under the three heads of libertas,
civitas, and familia, 40.
has disappeared in modern jurispru-
dence, 41.
Stipendiaria praedia.
meaning, 160.
res nec mancipii, 159.
Stipendium.
meaning, 98.
Btipulatio.
between heres and fideicommissarius,
272, 278.
judicatum solei, 584, 537.
clauses in, 539, 540.
pro praede lítis vindiciarum, 584,
53
fructuaria, 538, 598, 613.
and see Verbal contract.
Subscriptio.
a form of resoript, 83.
Succession.
meaning, 280.
universal, 280.
only admitted inter vivos in two
meaning, 157.
nature. of possession involved in,
I
Sureties. >
different kinds of, 370-1, 381.
to what obligations they cau be ac-
cessury, 371.
rights and liabilities of, 373-3.
see Sponsor, Fidepromissor, Fide-
jussor.
Syngrapha.
a species of literal contract, 884 ; and
see, 387.
Taxatio.
& limitation in condemnatio, 496.
Taxation.
system of, 164.
Temerity, 14.
Tempus.
continuum, 242.
utile, 242.
Testamentifactio.
fully explained, 209, et seq.
Testamentum ; see Will.
Theodosius.
law of citations, 34.
constitution ; as to promise of dos by
third party, 359.
as to limitation of actions, 544.
as to thirty years’ praescriptio, 552.
any prohibitive law is a lex perfeota,
573.
Things: see Res.
682
Tiberius.
changed legal effect of confarreatio,
Title.
definition, à. 163. la
as used by English ers, 3.
Bentham, 3. "
consisting of human action, 9.
of real rights, division of, 158.
as used by Austin, 163.
differs from titulus of the classical
juriste, 163-4.
differs from privilegium, 183.
civil, of res singulae, mancipatio, 150,
165.
in jure cessio, 160, 165.
usucapio, 171.
adjudicatio, 182.
lex, 182.
natural, of res singulae, traditio, 184,
188.
occupatio, 184-5, 191.
accessio, 185-6, 192-3.
specificatio, 186, 193.
perceptio fructuum, 189.
confusio, 192.
synopsis of, 194.
general remarks on, 355-7.
Titulus: see under Title.
Traditio.
& title of natural law, 158, 184.
ownership in res nec mancipii trans-
ferred by, 159.
reason for, and effect of introduction
of, 162.
explanation of, 162-3.
compared with feoffment in English
law, 163.
effect of, of res mancipii, 171-2.
was never fictitious, 190.
may be conditional, 364.
an.
business of miller may confer civitas
Romans, 52.
checked inhumanity of a father,
I.
constitution, as to position of Latinus
Junianus who has acquired jus
quiritium by imperial grant,
315.
Transactio.
an innominate contract, 352.
Transcriptitia nomina.
certain entries in account beoks,
883.
origin of the term, 387.
Trebatius.
opinion of, as to codicils, 288.
Tribunes.
had little power under empire, 33.
Tributaria praedia.
meaning, 160.
res neo manoipii, 1§9.
INDEX.
Triplicatio.
nature and object of, 566, 585.
Tutela.
definition, 111.
general explanation, 111.
legitima agnatorum, 112.
ronorum, 122.
of Latins devolves on quiritary owner
123.
mulierum, 129, 130.
how terminated, 132-3.
an institution of jus civile, 139.
and see Tutor.
Tutor.
testamentarius, who may appoint,
109.
to whom, may be appointed, 108,
110
form of appointment, 110.
effect of appointing, before heres,
207.
to commenoe to act after death
of heres, 267.
inoerta persona cannot be, 268.
optio or selection of, devised to wife
in manu, 110.
may be plena, 110.
angusta, 110.
dativus, 111.
optivus, 111.
duties of, 1x 1-2.
legitimus, agnate, 112-18, 115.
patron, 122.
other instances, 123.
Jiduoiarius, 128.
cessicius, 124.
when, may be superseded by another
tutor, 126-7.
praetorius, 127.
atilkanws, 127.
ez lege Julia et Titia, 128.
dispute ag to number of kinds of, 128.
kinds of, in time of Justinian, 138.
when duties of, terminated, 132-3.
when, required to give security, 186.
distinct from curator, 138.
effect of loans and alienations without
sanction of, 195, 196.
no condition can be annexed to au-
thority of, 364.
magistrates cannot appoint, condi.
tionally, 364.
nature of obligation of, to pupillus,
410.
degree of diligence required of, 453.
as to acquisition of possession through,
21.
Ulpian.
authority of writings of, 34.
short account of, 135.
INDEX.
Ulpian (continued).
definition of a will by, 205.
ion of the reasons given by,
why dediticius could not make
a will, 317-21.
Unde cognati, 305.
Unde legitimi, 305.
Unde liberi, 305.
Unde vir et uxor, 305.
Universitas.
personarum, 142.
jurts, 151.
how acquired, 202.
by will, 202 et seq.
by intestate succession, 204
et seq.
by bonorum venditio, 828-4.
by bonorum sectio, publicatio,
333, 401.
by arrogatio, 835.
by in manum conventio, 335.
by in jure cessio hereditatis,
887.
Usage.
& source of law, 34.
Usucapio.
a title of jus civile, 158.
conditions of, 180.
anges bs 169, 170.
bonitarz into quiritary do-
ien. 172.
length of on required for, 172.
exceptions as to land, 174,176.
possession given by a non-proprietor
may produce, 172, 178.
reason, 172.
which cannot be acquired by,
172, 173.
requires bona fide possession, 173.
why movables are seldom acquired
by, 178.
lucrativa pro herede, 174, 178.
land may be acquired in a year
by, 174. "
motive for allowing, 174.
made revocable, 175, 178.
of no avail against heres neces-
sarius, 175.
usureceptio is a species of, 176.
of movables compared with English
law of estrays, 178.
of thing mortgaged to the state and
sold, 175, 180.
law relating to, remodelled by Jus-
tinian, 180.
distinguished from limitation of ac-
tions, 181.
how far recognised in English law,
181.
usufructuary cannot acquire a slave
held in usufruct by, 198.
bonorum possessor, or emptor, acquires
dominium by, 324.
683
Usucapio (continued).
why praescriptio is sometimes used as
equivalent to, 586.
effect of, of a universitas, as to the
elements of which it is com-
posed, 621-2.
Usucapion-possession, 180, 615, 622.
Usureceptio.
explained, 175.
Usus
a mode of creating manus, 87, 88
an t in property, explained,
extinguished by capitis deminutio
minima till Justinian, 336.
Ususfructus.
& res incorporalis, 147, 157.
effect of in jure ceesio of, 166.
how created, 165-6.
as to things ‘acquired by a slave sub-
ject to, 197.
whether possession can be acquired
through a slave subject to, 108.
extinguished by capitis deminutio
minima till Justinian, 336.
Vadimonium.
for second appearance of defendant
to receive a judex, 504.
by defendant to reappear after ad-
journment, 628.
amount of, in different actiona, 629.
cautio judicio sisti, 631.
solvi, 631.
Valentinian.
law of citations, 34.
alteration of law Terms and Vacations,
290.
constitution as to violent seizing of
& man's own property, 440, 005.
Vangerow.
as to nature of aquaeductas, 156.
effect of pactio in creating servi-
tudes, 168.
whether separatio fructuum gives
boná fide possessor dominium,
pater. being witness to will of
filiusfamilias, 206.
interdictum quorum bonorum, and
possessoria hereditatis petitio,
304.
correality and solidarity, 377, 379-
place of oninjurisprudence,
454. 924.
claim of compensatio and deductio,
522.
time prescription begins to run,
554, 555+
interruption of prescription, 556.
effect of prescription on personal
actions, 557.
quorum bonorum, 602.
684
Vangerow (continued).
protection of urban servitudes, 618.
possession of superficiarius, 619.
Verbal contract.
modes of contracting without previous
interrogation, 855, 359.
stipulatio, 353-383.
rested on fiction of a money loan, 346.
how entered into, 853-4, 955.
form of, peculiar to Cives Romani,
854 ; why, 357.
which aliens may use, 854.
necessity for consecrated forms in,
abolished, 358.
effect of impossibility of object of,
859.
non-existence of subject-matter of,
359.
impossible condition in, 359.
to convey promisee’s property to
promisee, 360.
to convey after or day before death
of either party, 360, 365, 366.
want of correspondence between
question and answer in, 360.
between pater and filiusfamilias,
861.
where promisor is a filiafamilias,
servus, wife in manu, or person
in mancipio, 861.
one of the parties to, being deaf,
dumb, or a lunatic, 361.
the promisor being a pupillus -a,
801.
for payment to stipulator and a
third party, 860, 365, 367.
for payment to stipulator or a third
party, 381.
certain objects which could not be
secured by, 362.
reason why, became an universal form
of contract, 364-5.
no consideration essential to, but
promisor may plead exceptio,
effect of a written document accom-
panying, 369.
nature of, modified, 369.
a real contract merges in, 388.
is unilateral, 390.
extinguished by acceptilatio, 413.
Vespasian.
confers Latinitas on Spain, 49.
alters rule as to offspring of freeman
and slave, 77.
Sc. Pegasianum in reign of, 278.
Vexatious litigation.
checks upon, 626.
on part of defendant—
sometimes double damages, 625,
29.
INDEX.
Voexatious litigation (continued).
defendant becoming ignominiosus
in some cases, 628. be dis
ty if in jus vocatio i
P' regarded, 638.
security for appearance if the case
be adjourned, 628-0.
on part of plaintiff—
judicium calumniae, 626, 627.
contrarium judicium, 626, 627.
oath, 626.
restipulatio, 626, 627.
some persons cannot sue without
praetor's leave, 628.
in time of Justinian, 630-1.
Vindicatio.
a name for real action, 456.
Vindiciae dicendae, 602, 614.
Vindicta.
manumission by, 43, 46.
when compulsory, 48.
Vis.
absoluta, 21.
compulsiva, 31.
relief against, 22.
definition, 22.
ez concentu, 614.
Volition.
meaning of, 12.
Vulgaris substitutio.
meaning and general account of,
244—5
effect of cretio imperfecta upon, 245,
247.
implied in pupillaris substitutio, 248.
Wild animals.
&re property of first occupant, 184.
how property in, is lost, 184.
effect of, being partly tame, 192.
Will.
definition, 205.
made in comitiis calatis, 202, 205.
in procinctu, 202, 205.
per aes et libram, 202, 205.
praetorian, 207.
nuncupative, 207.
by jus tripertitum, 207.
publie, 207.
of a soldier, 208, 208.
changes in law relating to by Justi-
nian, 206-7.
a form of manumission, 49, 44, 45.
who could make a, 209-10.
who could take under a, 210-12.
who could be a witness of a, 204,
206, 212.
form necessary for instituting heres
in, 212, 214.
effect of, when informal, 218, 229.
sui heredes being passed over in
a, 216 et seq., 220-2; change
of Justinian, 222.
Yow w
INDEX.
Will (continued).
form necessary for disinheriting sui
heredes by a, 218; change
of Justinian, 222.
effect of grant of contra-tabular pos-
session on a, 226.
form of vulgaris substitutio in a, 244,
245.
pupillaris substitutio in a, 246.
is invalidated by erroris causae pro-
batio creating patria potestas
except in certain cases, 74,
227.
birth of postumi liberi who have
not been disinherited and who
survive testator, 218, 231.
& person succeeding to the place
of suus heres, unless provided
against in the will, 219.
adrogatio and adoptio, 287 ; but
see, 229.
reoeiving & wife in manus, or
marrying & person already in
manus, 227.
manumission of & son after first or
second sale, 227.
subsequent will, 228.
capitis deminutio of testator,
228.
express revocation but not by
mere change of intention, 230-1,
234-
new form of revocation in Justinian's
time, 234, 235.
not always inoperative though it be-
comes invalid, 229.
informal, might sometimes take effect
as & codicil, 388.
formalities attending the opening, etc.
of a, 293.
Witness.
who may be, of a will, 204, 206,
212.
Woman.
&, cannot adopt, 85, 86.
formerly could not be adrogated,
8
when a, is subject to manus, 87 et
seq.
how released from manus, 106-7.
testamentary capacity of a, 89, 93,
tutela. ver a, who has attained the
age of puberty, 129.
when exempt from, 109.
by law of Bithynia, 130.
ceases before Justinian’s time,
131.
atic, 94, 118.
fiduciary, 93.
685
Woman (continued).
testamentary, 110.
authority of tutor of a, who is of age
a mere formality in most cases,
129-80.
tutor of &, who is of age is not liable
in respec' of his administration,
139.
effect of error of law by a, 131-2.
how tutela over a, is terminated,
a, might have both a tutor and cura-
tor, 138.
alienation by a, 195, 196.
conveyance to a, 196.
payment of debt to a, when a dis
, 196.
effect of will of a, when unauthorised
by tutor, 213.
limited capacity of a, to take under
211, 277, 285.
rights, etc. of a, when sua heres: see
under Heres.
when a, is entitled to succeed as ag-
nate, 297, 298, 299.
a, agnate beyond sister entitled to
bonorum possessio as cognate,
801.
effect of payment to a, by mistake,
sponsor « d fidepromissor of a, may be
bound, 371.
a, could not "be guarantor, 383.
effect of acceptilatio by » without
tutor's authority, 418
& married,
& sua et necessaria heres when in
manus of testator, but has
potestas abstinendi, 237, 294.
right of succession to husband,
305.
in manu, cannot be bound by sti-
pulation to husband or to anyone
else, 861.
in manu, to what extent could be
adstipulator, 870.
in manu, as to obligation of, 411.
when entitled to beneficium com-
petentiae against husband, 497.
Wrong.
definition of, 4.
Wrongful aot.
contrasted with disposition, 9-11.
Zeno.
emphyteusis is a contract sui generis
and must be in writing, 397.
changes in law as to plus petitio, 518,
519.
payment of costs by loser of the cause,
3t.
THE END.